Opinion
June 27, 1950. Rehearing Denied July 24, 1950.
Appeal from the Circuit Court for Dade County, George E. Holt, J.
Shutts, Bowen, Simmons, Prevatt Julian and L.S. Julian, Miami, for appellant.
Nichols, Gaither Green, Miami, for appellee.
The plaintiff-appellee brought suit in the Circuit Court of Dade County, Florida, against the Seaboard Air Line Railroad Company under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for injuries sustained while serving as an employee in interstate commerce. The Pan American Corporation also was a party defendant. It was alleged that on the 27th day of April, 1947, at about 4:00 o'clock a.m., during the hours of darkness, in the vicinity of the City of Hialeah, the Pan American Corporation operated a business served by a side track of the Seaboard. The business was situated in a yard surrounded by a wire fence supported by metal posts which enclosed the Pan American's place of business. It was the lawful duty of the Seaboard to use reasonable care to furnish the plaintiff a reasonably safe place to work, safe appliance with which to work, and to keep its railroad right of way free and clear of obstacles and obstructions. Likewise to use reasonable care to avoid injury to persons lawfully invited upon the property.
The plaintiff was employed as a railroad switchman by the Seaboard and the duties required that he ride upon the sides and other portions of the cars provided for the purpose. When injured the plaintiff was riding on the side of the car being switched into the spur track, which spur track served the Pan American Corporation. The Seaboard negligently failed to furnish a safe place to work and negligently furnished a dangerous roadbed and tracks so obstructed by the iron fence posts which extended in dangerous proximity to its tracks, cars and equipment, and endangered the life and safety of its employees riding on the side of its cars and equipment in the course of their employment and negligently failed to warn the plaintiff of such obstructions and projection of the iron posts and plaintiff struck the posts and sustained described permanent injuries.
The Seaboard filed pleas: (1) not guilty; (2) contributory negligence; (3) additional pleas in the form of denials of allegations of the declaration. The issues made by the pleadings were submitted to a jury, and, after hearing the evidence adduced by the respective parties and instructions upon the applicable law by the trial court, returned a verdict of not guilty as to the Pan American Corporation and in behalf of the plaintiff and against the Seaboard. The Seaboard appealed and assigns as error here charges or instructions as given below and the refusal to give certain requested instructions.
Counsel for appellant contends that the following charges given by the trial court at appellee's request were prejudicial:
"One: On the issue between the plaintiff, Mr. Haynes, and the Seaboard Railway Company by whom he was employed, the obligation rests upon the Seaboard Railway to furnish its employees a reasonably safe place to work, and reasonably safe tools and appliances with which to do their work, and this would include furnishing a reasonably safe right-of-way and trackage over which they were required to proceed in the performance of their duty. In this connection the railway also owed to its employees the duty to warn its employees of any dangers or hazards which the railway could have ascertained in the exercise of reasonable care, and to give such adequate warnings and signs and signals to have brought to the attention of its employees the nature of the hazards which they would encounter in the course of their work, and in this connection the Seaboard Railway in performing its duty acts through its agents, servants or employees, who conduct its business in the scope and course of their agency, service or employment. If it was the duty of any one employee other than the plaintiff, acting in the scope of his employment, to give warning of the lack of standard clearance or of any obstruction on the track, and if this employee knew, or in the exercise of reasonable care should have known of the obstruction to the right-of-way, and of the lack of standard clearance, and if he negligently or carelessly failed to warn Mr. Haynes of such obstruction or danger when in the exercise of reasonable care he could have done so, then the defendant Seaboard Railway is held answerable in law for such negligence of such employee by and through whom it was acting in the performance of such duty.
"The fact that some other person or corporation may have created or placed the obstruction near the track or may have maintained or operated or assumed the duty of keeping the roadbed free of obstructions, does not in any wise relieve the defendant railway company of the duty which it owes to its employees as I have outlined to you, and if you find that the railway company was derelict or failed to perform any duty it owed to Mr. Haynes as an employee, which was the proximate cause of his injury, and if you also find that the negligence of the defendant Pan American Corporation concurred proximately with the negligence of the railway company, in the construction or maintenance of the premises of the Pan American Corporation, then if you so find you may properly award a verdict against both of the defendants, because they would be jointly liable to the plaintiff for injuries which resulted from any concurrent act of their negligence.
"Two: I further instruct you that the fact that the plaintiff was injured because of the failure of a fellow employee working with him to give him warning of the obstruction to the track, if you so find from the evidence, would not prevent a recovery by the plaintiff against the railway company, because the act of negligence or omission of the fellow employee in failing to warn or caution Mr. Haynes of the obstruction to the track caused by the post leaning over it would be the act of the defendant railway company itself, if you find that such fellow employee is acting in the scope and course of his employment. The railway company will be held liable for the acts of all of its employees acting within the scope and course of their employment, and if it becomes their duty under the circumstances to give Mr. Haynes any warning or signal and they negligently failed to do so, then the railway company itself is held liable in damages for the consequences thereof.
"I further charge you that in the case of the issue between the plaintiff and the Seaboard Railway Company the defense of contributory negligence has been asserted by the railway company. You are the judges as to whether or not such defense has been proven; however, I call your attention to the fact that under the law the fact that the employee may have been guilty of contributory negligence shall not bar recovery, but if you should find from a preponderance of all of the evidence in the case that the employee was guilty of some contributory negligence then you might diminish the damages in proportion to the amount of the negligence as attributed to such employee; however, you shall not attempt to apportion the damage nor diminish the employee's damage unless you find from a fair preponderance of the evidence that he has been guilty of some fault on his part directly and proximately contributing to his own injuries, and if you do not so find, you shall allow him a full measure of damages just as though such defense had not been interposed."
Also the following instructions as requested by the defendant-appellant but refused by the trial court: "Three: The Court charges you that if you find from the evidence that the Seaboard did not know that the condition existed which caused the plaintiff's injury, and you further find from the evidence that the condition which caused the plaintiff's injury did not exist for a sufficient length of time prior to the injury to put the Seaboard on notice of its existence, then your verdict must be in favor of Seaboard Air Line Railroad Company.
"Four: The Court charges you that even though you can find from the evidence that the post involved in this cause was leaning toward the track to such an extent that it caused the injury to the plaintiff, you must nevertheless presume that the Seaboard Air Line Railroad Company did not know that fact, unless you also find from the evidence that the Seaboard Air Line Railroad Company actually knew, or in the exercise of ordinary care should have known, that the post was leaning toward the track to such an extent that it constituted a danger to the plaintiff."
Counsel for appellant contends that instructions One and Two, supra, are erroneous as a higher duty to the appellee was imposed then required by law. It is argued that the charges, supra, placed upon the railroad an unqualified, absolute and unlimited duty (1) to furnish its employees a reasonably safe place to work; (2) to furnish reasonably safe tools and appliances with which to do their work, inclusive of a reasonably safe right-of-way; (3) to warn the employee of dangers which the railroad could have ascertained in the exercise of reasonable care; (4) give adequate warnings and signals of danger; (5) to have warned the employee about obstructions on the track. It is pointed out that the instructions should have included the words "to use ordinary or reasonable care". The case of Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1, Ann.Cas. 1915B, 475, is cited.
Our answer is three-fold to the above contentions: (1) this Court in passing upon a single instruction considers in connection therewith all other instructions or charges bearing upon the same subject, and, if the law appears to have been fairly presented to the jury, then the assignment must fail. Baston v. Shelton, 152 Fla. 879, 13 So.2d 453; (2) the authorities cited and relied upon by counsel for appellant fail to establish reversible error; (3) the following instruction, when considered with other instructions given on the subject, states a clear and accurate principle of law:
"The Court charges you that a railroad is not required to anticipate and guard against unexpected and improbable dangers to its employees.
"The Court charges you that under the law the Seaboard Air Line Railroad Company was not an insurer against injuries to the plaintiff, and did not guarantee the safety of the place in which the plaintiff worked, but on the contrary, the plaintiff cannot recover against the Seaboard unless he proved by a preponderance of the evidence that the Seaboard Air Line Railroad Company was negligent and that such negligence was the proximate cause of the plaintiff's injury.
"The Court charges you that the Seaboard Air Line Railroad Company was only required to exercise ordinary care and diligence to furnish a safe place for the plaintiff to work."
Counsel for appellant contends that the trial court erred in refusing to give requested instructions Three and Four on the question of the Seaboard's actual notice of the conditions which caused the alleged injury. It is likely that resourceful counsel overlooked the following instructions on the point as given by the trial court viz.:
"The Court charges you that the plaintiff has the burden of proving that the Seaboard had actual notice of the condition which caused the plaintiff's injury, or that the condition existed for a sufficient length of time prior to the injury to charge the Seaboard with notice of its existence.
"If you find from the evidence that the Seaboard did not know, and had no reason to believe that the plaintiff was in a place of danger or was working in an unsafe place, there was no duty on the part of the Seaboard to signal him or warn him of that fact."
We fail to find error in the record.
Affirmed.
ADAMS, C.J., and CHAPMAN, SEBRING and HOBSON, JJ., concur.