Opinion
July 29, 1952.
Appeal from the Circuit Court for Dade County, Vincent C. Giblin, J.
Loftin, Anderson, Scott, McCarthy Preston, Robert H. Anderson and William S. Frates, Miami, for appellants.
James C. Dougherty, Miami, for appellee.
This appeal is from a final judgment in favor of appellee (plaintiff below) entered in the Circuit Court in and for Dade County. The verdict of the jury was in the sum of $7,500 but the trial judge denied a motion for a new trial conditioned upon appellee entering a remittitur in the sum of $5,000. The remittitur was entered and the final judgment in the sum of $2,500 ensued. Appellee filed a motion to withdraw the remittitur which motion was denied. Appellant has assigned as errors: the court's refusal to direct a verdict in favor of the Railway Company at the conclusion of appellee's case and also the denial of a motion for directed verdict after all of the evidence was in; the denial of the motion for new trial and the entering of the final judgment; and the giving of charges 2, 6 and 7 given to the jury by the trial judge. Appellee cross-assigned as error the court's order requiring him to enter a $5,000 remittitur and the order denying his motion to withdraw the remittitur. However, since counsel for appellee has failed to argue the cross-assignments of error we must assume that he has waived them. This suit was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.
In his complaint appellee alleged that he received personal injury while he was employed as a switchman by the appellant and at a time when he was performing his duties as such switchman. The burden of his complaint is that the Railway Company was negligent in failing to provide him with a safe place to work. Appellant denied all of the material allegations of the complaint.
The real question for our determination is whether appellee proved, or presented evidence which formed a reasonable basis for concluding, that the Railway Company was negligent in that it failed to provide a safe place for him to work.
The injury occurred on October 31, 1949, about mid-day or early afternoon. Appellee had been employed as a switchman by appellant Railway Company for over ten years prior to the date upon which he was injured. On said day he was working on a track adjacent to appellant's main freight shed in Miami, Florida. He was engaged in spotting cars alongside of the shed. This freight shed is near the Miami River and is not far from several streets which by city ordinance are not permitted to be blocked for more than five minutes at a time by railway trains or cars. It is clear from the evidence that the workmen are customarily in a hurry when spotting freight cars at this location. Appellee stresses the fact that his foreman admonished him just prior to the accident that he should hurry to set the brakes on the cars that were then being spotted because one of the streets had already been blocked for a good portion of the five minutes allowed by law.
Appellee climbed up a ladder on the side of a stationary freight car for the purpose of setting the hand brake. As he reached the top of the ladder his head struck a gutter which ran along the edge of the roof of the freight shed. The blow bent in an army helmet which appellee was wearing and caused a dislocation of a vertebra in his neck.
He had on many occasions during the ten year period in which he worked for the railroad set the hand brake in the same manner in which he was attempting to set it when he was injured. He was thoroughly familiar with the fact that the roof had this gutter and that between the top of the freight car and the gutter the clearance was close. Joyner adroitly, not to say cagily, attempted to avoid being pinned down when asked if he had performed the same duty in the same manner at that place on many occasions prior to his injury. His testimony was: "I don't know as I have ever set one right in that direct place or not * * *." However, he did testify that he had spotted cars on that track next to the freight house and that the things he was doing at the time of the accident were usual and customary for him to do on that track. Appellee testified it was a clear day; that the freight shed had been there for ten years and that he had worked around there braking cars off and on for as long as he had worked for the railroad. We do not find any evidence to sustain the contention of the appellee that there was anything unusual about the conditions under which he was working on the date he was injured. We are not impressed by counsel's argument that the "hurry up" order given by the foreman was an incident which created an unusual condition that caused the close clearance to be unsafe and dangerous. Joyner knew of the close clearance and, according to one of his own witnesses, he also knew that "It is customary to get off of them crossings in five minutes, yes", which quoted statement was an answer given in response to the question: "It is ordinary and customary for men working at that particular spot to always be in a hurry?"
Counsel for appellee urge that it is the duty of a jury to determine from all the evidence as presented whether or not negligence appears as a question of fact and that only in cases where there is a complete absence of evidence pointing to the negligence of a railroad company should a case be withdrawn from the jury. He cites respectable authority for his position, among cases cited being Edwards v. Baltimore O.R. Co., 7 Cir., 131 F.2d 366; Tiller v. Atlantic C.L.R. Co., Va. 1943, 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610; Larsen v. Chicago N.W.R. Co., 7 Cir., 1948, 171 F.2d 841.
With certain limitations and modifications we agree with counsel's contentions. We definitely have the view that where uncertainty as to negligence stems from conflicting evidence a question of fact as distinguished from a question of law is raised and the jury should resolve that question. In such a case the question of the credibility of witnesses, as well as the effect or weight to be given to the evidence, is for the jury. However, when the question is whether the employer furnished the employee a reasonably safe place in which to work and the competent evidence upon such question is not conflicting but as in this case shows with mathematical precision just what the conditions were and that the employee had full knowledge concerning them, having worked "off and on" under those conditions for a period of ten years, and there is no unusual circumstance created by the employer or its agent which might be reasonably calculated to change a customarily safe place into a dangerous or unsafe one, it cannot be said that there are probative facts which tend to show the negligence of the employer and therefore no reasonable basis exists to justify the conclusion that there was negligence on the part of the employer which contributed proximately or at all to the employee's injury.
Appellee's counsel lays great stress upon the case of Taber v. McAdoo, 188 App. Div. 341, 177 N.Y.S. 104; Taber v. Davis, 2 Cir., 280 Fd. 612, 616 (sic). He states the court in that case held: "The question whether a canopy erected over a freight platform alongside a railroad track was reasonably safe as to employes whose duties required them to be on the tops and sides of freight cars presented no engineering or scientific problem, but could be determined by the jury without expert aid."
We have examined the case in 280 F. on page 616 which is styled Taber v. Davis and which begins on page 612. We have also found the case of Taber v. McAdoo, supra, which obviously was an earlier proceeding in the state court while the case of Taber v. Davis, although growing out of the same set of facts, was subsequently tried in the Federal Court. The state court disapproved the finding that the defendant was guilty of negligence but in the Federal case the Court decided that the evidence presented a question of fact for the jury. The Federal Court in its opinion mentioned several times that there was no evidence to prove Taber, who was working on top of a moving train, had worked "in this canopy locality" or that he had full opportunity of knowing all that the railroad company is presumed to have known about the conditions prevailing in that place. It was also pointed out by the court that "Here there was no clearance * * * and a debatable question of necessity for the canopy." (Italics supplied). The court ultimately concluded "In Taber's Case there was no knowledge, and whether the danger was `plainly observable' (McDade Case), [Choctaw, Oklahoma Gulf R.R. Co. v. McDade, 191 U.S. 64, 24 S.Ct. 24, 48 L.Ed. 96] or was `so obvious that an ordinary prudent person under the circumstances would have appreciated it' (Gila Valley Case), [Gila Valley R. Co. v. Hall, 232 U.S. 94, 34 S.Ct. 229, 58 L.Ed. 521] was on this evidence a question of fact for the jury." (Italics supplied).
In the instant case we can but conclude that Joyner had full and complete opportunity of knowing, and did know, all about the closeness of the railroad freight car to the freight shed and of the "close clearance" between the top of the railroad car and the gutter. Moreover, it was established that the freight shed and the tracks were properly constructed; that it was essential to successful operation to have the tracks and the freight shed constructed in the manner in which they were constructed and that the construction of the freight shed was consistent with good engineering and safety practice. Although this testimony came from witnesses of the Railway Company it was not refuted. There is in this record uncontradicted testimony by appellee and one of his witnesses that the gutter against which appellee struck his head is two feet above the top of the freight car. If the side of the freight car were extended upward two feet the clearance between it and the gutter would be about 3 1/2 to 4 inches. That the place where appellee was working must have been a reasonably safe place for a switchman to work is further evidenced by the fact that the record discloses there never were any reported cases of similar injury to any other employee or employees during the shed's ten years' existence. True it is that witness Rhoden testified he bumped his head against the gutter on two occasions but he must have considered the place or places in which he was working to be safe and the minor accidents wholly attributable to his own fault or neglect for he did not report either profanity provoking experience.
We find no occasion to discuss the question whether the defenses of contributory negligence and assumption of risk operate as a complete bar to recovery in a case such as this which is brought against the Railway Company under the Federal Employers' Liability Act as amended in 1939. Appellant states that it made no such contention at the trial and certainly it has not done so on this appeal. Suffice it to say the employer's negligence must be in whole or in part the cause of the employee's injury in order to render the employer liable. We hold in this case that the Railway Company was not negligent because it did furnish a safe place in which the employee carried out his ordinary and customary duties and there was no unusual circumstance disclosed by the transcript of record which might reasonably be calculated to change an ordinarily safe place to work into a dangerous and unsafe one. Indeed, we are constrained to agree with counsel for appellant that "the only thing abnormal about the particular movement in question was the manner in which Joyner performed it." We hold that Joyner's negligence was the sole proximate cause of his injury for he rushed head-long and erectly up the side ladder of the freight car while it was motionless patently oblivious to the close clearance between the top of the freight car and the gutter which did not constitute a hidden or latent danger and which was a condition that had been known to him for many years but which obviously on the occasion of this accident slipped his memory. Furthermore, appellee failed to present evidence which can be said to furnish a reasonable basis for concluding that the Railway Company was negligent.
The trial judge should have granted appellant's motion for a directed verdict. Consequently, the final judgment from which this appeal was taken should be and is hereby reversed.
SEBRING, C.J., and TERRELL and THOMAS, JJ., concur.