Florida Central & Peninsular Railroad v. Mooney , 40 Fla. 17 ( 1898 )

Carter, J.

1. The court did not err in overruling objections to the question propounded to plaintiff, “How long had Ned F. Launt been shifting engines at Cedar Keys before the injury.” Launt was the engineer in charge of the engine at the time of the accident. It was his alleged negligence which caused plaintiff’s injury. The length of his service as shifting engineer at this point was material as bearing upon his knowledge of the location and situation of the main tracks, sidetracks, switches, the methods of operating them and of shifting cars at this particular place, as well as the customary duties of the men employed thereat, and the system of signaling in use by them. The question had no tendency to elicit testimony as to the engineer’s competency, as argued by plaintiff in error. It did not inquire how long Launt had been a shifting engineer, but how long he had been shifting engines at this particular place. It tended to elicit evidence showing a knowledge upon the part of the engineer of his surroundings, and the conditions existing at the time of the accident, and it can never be irrelevant or impertinent to prove a knowledge on the part of one alleged to have been negligent of those surroundings and circumstances which enter into and often control, the question as to whether such person has failed to exercise proper care.

II. There was no evidence tending to show any negligence on the part of the defendant in failing to provide necessary, suitable, safe or practicable arrangements and conveniences for the plaintiff as its train shifter at Cedar Keys, but only that plaintiff’s injuries were caused by negligence of defendant’s shifting engineer. What we decide in this case, therefore, has no reference to a case where the master’s own negligence, and not that of his employe, causes injury to another employe. It is admitted in the declaration, and clearly shown by the evidence, that plaintiff and Launt were co-employes, engaged in the same common work, and independent of statutoiy enactments the defendant, their employer, would not be liable to either for injuries caused by the neglig-ence of the other, in the course of such employment. Camp v. Hall, 39 Fla. —, 22 South. Rep. 792, and cases therein cited.

In 1887 our Legislature passed Chapter 3744, approved June 7, 1887, entitled, "An act to apportion the damages in actions against railway companies bjr persons and employes, and to provide for such recovery of damages against said railway companies by its employes.” This act contained only two sections, and is quoted in full in Duval, Receiver v. Hunt, 34 Fla. at text page 104, 15 South. Rep. 879. In 1891 the Legislature passed Chapter 4071, approved May 4, 1981, entitled, “An act defining the liabilities of railroad companies in certain cases.” The first, second and third sections of this act are quoted in the court’s charge to the jury in this case; the fourth section in express terms repeals Chapter 3744 act of 1887, and the fifth section puts the act into effect from its passage. It was held by this court in Duval v. Hunt, supra, that the act of 1887 was adopted from the statutes of our sister State, Georgia, and that any known and settled construction placed thereon by the courts of that State, prior to its enactment in this State not inharmonious with the policy and spirit of our own general legislation on the subject, would prevail in construing the statute in this State, It was further ruled in that case, in conformity to decisions from the Supreme Court of Georgia construing their statute, that the apportionment of damages authorized by the first section of our act of 1887, in cases where both parties were at fault, had no application to the cases provided for by the second section, and that in cases embraced within said second section, the employe injured by the negligence of another employe, in order to recover against the employer must, himself, be entirety free from fault. The second and third sections of the act of 1891 are substantially but re-enactments of the act of 1887, so far as they appty to the facts of this case, although there, áre some changes in the phraseology. But the act of 1891, by section one, enacts a provision entirely new to the statutory laws of this State, but which we find is in the State of Georgia a part of the same statute from which section two of our original act of 1887 was, in Duval, Receiver, v. Hunt, supra, declared to have been taken. This provision stands as section 3033 of the Georgia Code of 1882, in language identical with the first section of our act of 1891. The Supreme Court of Georgia in Campbell v. Atlanta & Richmond Air Line R. R. Co., 53 Ga. 488, held that under the provisions of section 3033 of the Code (corresponding to the first section of our act of 1891), an employe embraced within the provisions of their Code, section 3036 (corresponding with the second section of our act of 1887, and third section of our act of 1891), in order to recover damages must show that his injury was caused without fault or negligence on his part, but that the company must prove that its agents have used proper care and diligence. In the case of Thompson v. Central Railroad & Banking Company, 54 Ga. 509, the previous decision seems to have been overlooked until after the latter case was disposed of, and it was there held that the statute placed the burden upon the company to defeat plaintiff’s right of recovery, either by showing that plaintiff was negligent, or that its agents were not negligent. In subsequent decisions the two cases above referred to were reconciled, and it was declared that in suits by an employe to recover damages from his employer for injuries alleged to have been inflicted by the negligence of another employe in performing some act in the master’s service, in the performance of which plaintiff as a co-employe was participating, the plaintiff must show either that he was free from fault himself, or that there was negligence on the part of his co-employe; that upon proof of the fact that plaintiff in such a case was free from fault, the statutory presumption arose that the servants of the company were at fault, and it thereupon devolved upon the company to “make it appear” to .the .contrary. If, however, the act by which the employe was injured was one being performed by other employes in the master’s business, but in the performance of which plaintiff was not participating, then the presumption of negligence on the part of the agents of the company, i and that plaintiff was free from fault, arose under the statute, to the same extent as if the plaintiff was not an employe, and it devolved upon the company to relieve itself, either by showing that plaintiff was at fault, or that its servants were not negligent. Atlanta & Richmond Air Line Ry. Co. v. Campbell, 56 Ga. 586; Central Railroad & Banking Co. v. Kelly, 58 Ga. 107; Central Railroad & Banking Co. v. Kenney, 58 Ga. 485. This construction of the statute was well settled in Georgia, long before the provisions of our act of 1891 were adopted in this State, and is still adhered to, as will be seen by reference to the following decisions: Central Railroad & Banking Co. v. Sears, 59 Ga. 436; Central Railroad & Banking Co. v. Roach, 64 Ga. 635; Central Railroad v. DeBray, 71 Ga. 406; Savannah, Florida & Western Railway v. Barber, 71 Ga. 644; Georgia Railroad v. Ivey, 73 Ga. 499; East Tennessee, Virgina & Georgia Railroad v. Maloy, 77 Ga. 237, 2 S. E. Rep. 941; Georgia Railroad v. Bryans, 77 Ga. 429; Central Railroad & Banking Co. v. Small, 80 Ga. 519, 5 S. E. Rep. 794; Central Railroad & Banking Co. v. Nash, 81 Ga. 580, 7 S. E. Rep. 808; Western & Atlantic Railroad Co. v. Vandiver, 85 Ga. 470, ti S. E. Rep. 781; Savannah & Western Railroad Co. v. Phillips, 90 Ga. 829, 17 S. E. Rep. 82. Following our ruling in the case of Duval, Receiver, v. Hunt, supra, we think this construction placed upon the statute by the Supreme Court of the State of Georgia is binding upon us in the present case. The plaintiff having been injured by the alleged neglig-ence of a co-employe in performing an act about defendant’s business in which plaintiff as an employe was participating, no presumption of liability arises against the defendant until it is shown either that plaintiff was not at fault or that his co-employe was. The second instruction on behalf of plaintiff was, as applied to these facts, correct, and there was no error in giving it.

The first and second instructions requested by defendant were properly refused, because they required plaintiff to prove that he was without fault and that defendant’s agent was negligent, without giving him the benefit of the statutory presumption upon proof of one of these facts only.

The court said to the jury that the instructions given on behalf of the plaintiff and defendant did not cover the entire law of the case, and then proceeded to charge them in the language of the first three sections of the act of 1891. It was error to give without qualification or explanation the broad language of the first and second sections of that act, for the language of the first section was calculated to impress the jury with the idea that all presumptions were against the company, and that it devolved upon it to make it appear that its agents had exercised all ordinary and reasonable care and diligence, while as we have seen in a suit of this character by an employe no presumption against the compan}' arises, nor is it required to “make it appear” that its agents have exercised proper diligence until and after plaintiff has shown either that he, himself, was without fault, or that his injuries were caused by the negligence of a co-employe. The language of the second section of the act of 1891 was calculated to impress the jury with the idea that they could apportion the damages between plaintiff and defendant in case they found that the plaintiff and the defendant’s agents were both at fault; whereas, as we have seen, there can be no apportionment of damages in a case of this kind. In order for an employe to recover he must be free from fault. Duval, Receiver, v. Hunt, supra.

III. The third instruction requested by defendant was properly refused. It is sought to he sustained in this court upon the theory that the facts therein stated would constitute contributory negligence. The language of this instruction is apparently approved in many decisions; most of which are collected in I Bailey’s Personal Injuries, relating to master and 'servant, pages 392 et seq. As an abstract proposition we do not think this instruction can be sustained upon principle. The servant in the performance of his duties is bound to exercise ordinary care, or that degree of care which prudent persons usually exercise under similar circumstances, and |if he is injured by failure to exercise such care, his master is not liable. Wood’s Master and Servant, §372. If, in the performance of his duties, two or more methods are open to him, and he has no instructions to pursue one in particular, he necessarily must choose between them, and he cannotbesaid to have been negligent if'he in good faith adopts that which is more hazardous than another, provided the one pursued be one which reasonable and prudent persons would adopt under like circumstances. Any other rule would require the servant to be measured by the standard of very prudent persons, for only extremely cautious persons ordinarily adopt the least hazardous course where both are considered safe and appropriate. For this reason it can not be held as a matter of law that in all cases where a servant is injured while pursuing a method voluntarily adopted by him, more hazardous than other available methods, he is guilty of contributory negligence, for non constat the method pursued may be one which prudent persons would ordinarily exercise under like circumstances. Ordinarily the question of contributory negligence is one of fact for a jury under proper instructions from the court, and it is only in those cases where the conclusions and inferences to be drawn from facts in evidence are indisputable, involving a common instinct of mankind — self-preservation—that it becomes a question of law. Louisville & Nashville R. R. Co. v. Yniestra, 21 Fla. 700. As applied to the facts of the present case this instruction told the jury that if the plaintiff voluntarily undertook to perform his duties of shifting cars by means of “running'switches,” instead of pursuing another method less dangerous, he could not recover for personal injuries received by him. Shifting cars by means of the “kicking back” process is not necessárily and at all times an act of negligence per se. As. against persons other than employes, where the process is not guarded by proper precaution, such as ringing-bells, stationing flagmen at crossings, brakesmen on the end of the train, and the like, it is, as a matter of law, negligence to shift cars in this manner; but there is no doubt that it may be performed with perfect safety to employes and third persons by exercising proper precautions. This instruction did not convey the idea that defendant would not be liable if this process was one which prudent persons under the circumstances surrounding- the parties at the time would not usually have exercised, or that at this particular time and place it was imprudent to attempt it, or that plaintiff was not exercising- due care commessurate with his surroundings in performing his duties connected therewith. It assumed as a matter of law not that making a running switch was in itself an act of negligence, but that it was negligence on this occasion only because there was a safer way to shift the cars. The plaintiff testified that this method was universally practiced upon all railroads, had always been used upon defendant’s road at Cedar Keys, and that he had never known the safer method to be used by any railroad man. The defendant introduced no evidence to disprove these statements, except that of the engineer, Launt, who testified that this method was “known to railroad men to be very dangerous, but it is generally done in that way. I have seen very careful men who would not kick the cars when they could help it, but very few of them; they generally kick the cars.” There is nothing in the evidence from which the court could say that as a matter of law the plaintiff did not exercise due care in selecting the “flying swithch,” or more dangerous method of shifting cars. That was a question for the jury to determine under proper instructions from the court. St. Louis & San Francisco Railway Co. v. French, 56 Han. 584, 44 Pac. Rep. 12.

IV. The court properly refused defendant’s fourth instruction. This instruction was similar to the one considered in the preceding paragraph of this opinion except that it embraced the idea that the method of shifting cars adopted by plaintiff was one against which he had been warned by an official of the company. There was no evidence that any official of the company, in his official capacity, had ever given plaintiff such warning. The defendant’s depot agent at Cedar Keys had often told plaintiff of the dangers involved in this process. He is not shown to have had any authority to prescribe the manner in which plaintiff’s work was to be done, nor to forbid his doing it in any particular manner. All that he said was in the way of friendly advice to a personal acquaintance, and not as possessing authority from the company. There was no evidence that plaintiff was disobeying defendant’s instructions at the time of his injury, and this charge was, therefore, property refused.

V. There was no evidence upon which to base a charge for exemplary damages. There was nothing to show a malicious or intentional injury inflicted upon plaintiff, neither was there any evidence tending to show that the engineer was guilty of negligence of so gross and flagrant a character as to evince reckless disregard of human life, or of the safety of those exposed to its dangerous effects, or that entire want of care which would raise the presumption of a conscious indifference to consequences, or to show wantonness and recklessness, or reckless indifference to the rights of others equivalent to an intentional violation of them, which is necessary to justify a jury in inflicting punitive damages. Florida Southern Railway Co. v. Hirst, 30 Fla. 1, 11 South. Rep. 506; Florida Railway & Navigation Co. v. Webster, 25 Fla. 394, 5 South. Rep. 714. The evidence showed at most that plaintiff gave a signal to stop the train; that the engineer did “slow down,” but failed to come to a full stop. The signal was given from the car steps, instead of the swith platform, and the'engineer testified (and -was not contradicted) that he did not see the signal; that he was never on the lookout for a signal from the car steps, but only from the switch platform, and that it was understood between him and the plaintiff, before they left the depot that he was not to stop the train, but only to “slow down.” The engineer did stop the instant he ascertained that plaintiff was hurt. There was nothing in the facts to show negligence of a gross or flagrant character, nor to warrant the infliction of any damages by way of punishment. Florida Railway & Navigation Co. v. Webster, 25 Fla. 394, 5 South. Rep. 714.

The judgment is reversed, and a new trial awarded.