Florida East Coast Railway Co. v. Pierce , 65 Fla. 131 ( 1913 )

Whitfield, J.

The count of the declaration on which judgment was rendered alleges in effect that the plaintiff wife while proceeding to board a passenger train of defendant, it being dark, she stumbled and fell over a large piece of timber carelessly and negligently allowed by the defendant to be on the ground near the platform of the car at the place where she had been directed by defendant’s train men to board the train, the plaintiff being thereby injured, from which she suffered, and continues to suffer, and the husband has been deprived of the services, companionship and wifely attention, society and aid of and consortment with the wife, and the plaintiffs were obliged to expend sums to cure the wife. Damages in $25,000.00 were claimed. Special pleas having been stricken on motion, trial was had on a plea of not guilty under which plea evidence was admitted appropriate to the issues tendered by the stricken pleas. One of the main contentions was the alleged negligence in allowing a piece of timber to be at the place where the plaintiff, Miriam L. Pierce, was proceeding in the dark to board the train as directed by the trainmen. Judgment for $12,500.00 was rendered, and defendant took writ of error. Fifty-six errors are assigned and more or less argued, but a discussion of them in detail will serve no useful purpose. Conflicts in the evidence as to whether the plaintiff’s wife was in fact directed by the defendant’s trainmen to board the train that was not at the regular place for taking on passengers, have been settled by the jury, and the record affords no controlling reason for disturbing the finding of liability against the defendant. There is evidence that when Mrs. Pierce fell over the piece of timber, she was rendered unconscious for awhile, and that she has suffered greatly more or less ever since. A physician testifying for the plaintiffs stated that while examining Mrs. Pierce to ascertain her injuries she fainted and lost consciousness entirely; she suffered great pain, was very nervous and spit blood. The physician discovered two ribs broken, her ankle was badly sprained, the external ligaments of an ankle were ruptured and she has suffered from it ever since. He doubted if her ankle would ever be as strong again as it had been. She still suffers pain and great inconvenience. He did not think the ankle would ever get well. A physician appointed by the court examined Mrs. Pierce just before the trial and testified that he could find no evidence of injury to the chest wall, the ribs, the lungs or the pleura so far as he could make out with his finger. There was no evidence of callous or depression of the ribs. Mrs. Pierce then complained of pains in the chest. He found a puffiness of the right ankle at the outer side, along the line of the exterior lateral ligament that was caused by a severe sprain, a rupture of the auxiliary ligament, that is the main ligament of the ankle joint. This, injury to the ankle would not be permanent, although the ankle will be weak for some time.

There is testimony that Mrs. Pierce was by the injury rendered unable to walk with comfort; that she was in bed three or four weeks and complained of her side for six weeks or two months. There is no evidence of sums paid out by the plaintiffs because of the injury or of specific losses of any kind to the husband or the wife, though there is evidence that a physician attended Mrs. Pierce for several weeks.

The liability of the defendant is not so clearly established as it was in Florida East Coast R. Co. v. Schumacher, 63 Fla. 137, 57 South. Rep. 603, but regarding' liability as being shown in this case and conceding that the injuries here are somewhat greater than in the Schumachen case, and that there were expenses , incident to physician’s services to Mrs. Pierce, yet, in the opinion of the writer and Mr. Justice Taylor, the verdict is excessive, for, as in the Schumacher case, there is no basis for punitive damages. But a majority of the court are of opinion that the amount of damages awarded is not so large as to require interference by an appellate court, therefore the judgment is affirmed.

SHACKLEFORD, C. J., AND COCKRELL AND HOCKER, J. J., concur.