Opinion
June 20, 1952. Rehearing Denied July 7, 1952.
Appeal from the Circuit Court, Hillsborough County, L.L. Parks, J.
C.C. Howell, Jacksonville, LeRoy Allen, Ralph C. Dell, Tampa, for appellant.
Neil C. McMullen, Tampa, T.J. Lewis, Jr., Atlanta, Lewis Lewis, Opelousas, for appellee.
This appeal is from a final judgment awarding appellee damages for personal injuries in the sum of $5,000. The case was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and was tried before a jury on the issue of proximate cause and contributory negligence.
The real point for determination is whether or not the evidence was sufficient to support the verdict and judgment awarded.
Appellee was an employee of appellant, was engaged in painting a locomotive and was injured by falling from the running board of the locomotive to the concrete floor about ten feet below. The gist of his contention is that he was not furnished a reasonably safe place to work. At the conclusion of all the testimony defendant moved for an instructed verdict on the ground of failure to prove negligence on the part of defendant. We think the motion should have been granted. We have examined the evidence carefully and we fail to find sufficient proof of negligence on the part of defendant. The plaintiff should not be permitted to recover unless negligence is proven.
So the judgment is reversed with directions to enter a final judgment for the defendant Atlantic Coast Line Railroad Company.
Reversed.
TERRELL, HOBSON, ROBERTS and MATHEWS, JJ., concur.
SEBRING, C.J., and THOMAS, J., dissent.