Opinion
December 18, 1951. Rehearing Denied March 10, 1952.
Appeal from the Circuit Court for Orange County, Frank A. Smith, J.
LeRoy B. Giles, John G. Baker and B.C. Thornal, all of Orlando, for appellant.
Maguire, Voorhis Wells, Orlando, for appellee.
This appeal is from a final judgment in favor of appellee for the negligent death of her husband. Section 440.39, F.S.A. The accident in which appellee's husband was killed took place at Orlando, Florida while he was unloading automobiles from a box car of appellant. It is contended (1) That the trial court committed error in admitting in evidence a gruesome picture of the mangled body of the deceased after it had been moved from the place of the accident. Other gruesome pictures taken before it was moved having been previously introduced. (2) Defendant should have been permitted to prove that it did not own the box car and unloading device. (3) The deceased was guilty of contributory negligence. (4) The amended declaration should not have contained the allegations that "it was the duty of the defendant to use reasonable care to see that the box car and unloading devise were in a condition for said automobiles to be safely unloaded by the consignee." (5) The declaration was bad in that it stated no causal connection between the allegation of negligence and the injury complained of. (6) There was a fatal variance between the allegations of the declaration and the proof. (7) The award of damages was excessive.
The box car in question belonged to the St. Louis and San Francisco Railroad Company and was loaded at Detroit for transportation to Orlando, Florida. It was turned over to the defendant, A.C.L. Ry. Co. at Birmingham, Alabama and by it conveyed to destination. It was equipped with two Evans E-Type Automobile Loaders, one in either end of the box car. The automobile loader or rack is a device to accommodate an automobile and when supporting one weighs several thousand pounds. It is supported by four rigid steel arms, fastened to the ceiling of the box car. It is raised and lowered by means of a hand chain wheel, worm gear, bronze gear, drum shaft, drum and cable. It is raised and lowered by means of an endless chain looped over the hand chain wheel. When the rack is raised for a second car to be placed under it, the arms are horizontal but when lowered they swing down to a vertical position. It comes to rest with arms at angles but in its descent it swings forward and downward like an arc.
August 16, 1949, Eddie Gary, the husband of the plaintiff, with a crew of helpers undertook to unload the box car. The two automobiles in one end and the one on the floor in the other end were unloaded without incident. Eddie Gary then told Richard Durham to pull the chain which activated the loading device so he could remove the supporting legs. Richard obeyed but it would not move, a second attempt failed to release it. Eddie then told him to hold what he had and he would force the supporting legs out. He did so and told Richard to let it down. Richard asked him if he was clear and he replied "yes". Richard then pulled the chain to lower the rack but as he did so it broke away and swung rapidly to the floor. Eddie Gary was caught under the rack almost midway between the sides of the box car and was killed instantly.
On the question of whether or not the gruesome photograph should have been admitted in evidence little need be said. Other photographs had fully exemplified the locus and the sight presented by the crushed head and body of the deceased. It showed nothing more than the nature and extent of the fatal injury and gave the jury some idea of the result produced by the loading device. The introduction of the photograph was a matter in the discretion of the trial court, the main objection to it was that it was cumulative but that did not make it inadmissible, so the error if there was one, was harmless.
The second question — Should defendant have been permitted to submit evidence showing that it did not own the box car and unloading device? The rule is well settled that the ownership of the box car under circumstances like this is not material. When a railroad company takes over a box car from another carrier, it takes it as part of its own equipment and assumes responsibility for its condition. Ladd v. New York, N.H. H.R. Co., 193 Mass. 359, 79 N.E. 742, 9 L.R.A., N.S., 874.
As to the unloading device, there is evidence in the record that it was gone over August 24, several days after the accident and that it was not then up to standard condition. There was evidence that an improper lubricant had been used on it and that an examination after the accident disclosed that the worm gear was fractured. Richard Durham and Eddie Bryson testified that Eddie Gary had warned them not to stand under the rack when it was being lowered. It is conclusively shown that the rack dropped instantly, that it was supposed to drop gradually, that the fracture in the worm gear was an old and progressive one. The exact location of the deceased at the time it dropped was in dispute but in any event it was for the jury to determine from all the evidence whether he was standing under the rack or in front of it when it plummeted to the floor.
It is next contended that the evidence of the plaintiff shows that Eddie Gary was guilty of contributory negligence as a matter of law and was not entitled to recover.
This contention is based on the fact (1) that when the chain which raises and lowers the loading device pulls with difficulty it means that something is wrong inside the gear housing. In other words, a danger signal. When Eddie Gary discovered this he should have declined to proceed further till the defect was remedied; and second, Eddie Gary stood in the path of the descending rack when he knew it was about to be lowered.
The evidence shows that the chain on the unloading device did not pull readily, but Eddie Gary had a right to assume that the box car and the unloading device were in reasonably safe condition. He was accordingly warranted in resorting to all reasonable means to lower it. This court is committed to the doctrine that contributory negligence is a question of fact for the jury and when the evidence as here, shows nothing more than knowledge of the source of danger, the question of negligence should not be taken from the jury. All the evidence shows is that the unloading device failed to move when the chain was pulled, the deceased would hardly have been faithful to his trust if he had not made a second attempt to move it. Then he was an experienced man in the use of these unloading racks and knew that when they moved normally they moved slowly. He had operated them for several years and knew he had ample time to clear if it behaved normally.
As to whether or not Eddie Gary stood in the path of the descending rack when it was about to be lowered, it is true that there is evidence from which the jury might have reached this conclusion, but there is evidence from which it might have and did reach a different conclusion. It would be unreasonable to assume that when Eddie Gary gave the "all clear" signal he did not think he was in a safe position. The evidence shows that when the rack descended normally it required 30 to 35 seconds to reach the floor. It was a common practice to halt it in its normal descent and undo the chains before lowering to the floor. The weight of the rack, its normal behavior and experience in handling it warranted this. Whether or not under all the circumstances what was done in this case constituted negligence was a question for the jury.
It is next contended that the declaration is fatally defective in that it fails to allege or reveal any causal connection between the fatal injury and the negligence of defendant in failing to exercise reasonable care to see that the freight car and the unloading device were in safe condition.
We have examined the declaration and we think it amply rebuts this contention. It alleges the duty due by defendant to Eddie Gary, how the unloading device would normally operate and where Gary was standing when the accident took place. It then alleges that because of the defective condition of the unloading device, instead of lowering gradually and safely to the floor, it suddenly and violently fell and was precipitated and thrown several feet forward upon and against Eddie Gary, wounding and crushing him so that he then and there died of wounds so caused. These and other allegations of the amended declaration clearly charge a connection between the negligence charged and the injury complained of.
Summarized, it may with propriety be said that the casting of a declaration for wrongful death under Section 440.39 F.S.A. is not an intricate matter. Appropriate words charging defendant with being negligently responsible for the death of decedent is sufficient. Contributory negligence is a defense that the jury must ordinarily determine from the evidence. There must, of course, be legal evidence for the jury to predicate its judgment, but there is plenty of that kind in this record. Every objection raised to defeat recovery goes to the sufficiency of the declaration, the sufficiency or relevancy of the evidence, or the excessiveness of the judgment. No one goes to the merits of the case. The crash of the loading device may have been due to the fracture in the worm gear or it may have been due to some other cause. True the worm gear was inclosed in a housing but this did not relieve the responsibility of defendant to keep it in reasonably safe condition. Whether or not it did this, whether or not deceased was prudent, in manipulating it, whether or not he was careless in conducting the unloading of the automobiles or purposely threw himself under the rack and committed suicide were questions for the jury. The factors that bear on the question of contributory negligence in this case are many, they are physical and vocal, the jury had them before it, they were confronted with a complex problem that was factual, not legal, they had an insight into it that we do not have.
A jury is at liberty to draw reasonable deductions from the evidence. It may be that on account of the defective condition of the worm gear the rack did not drop to the floor in its normal path. Whether the jury thought this or some other factor was responsible for Gary's death is not for us to define. We may set aside a verdict because it is not legally predicated but we are not permitted to set it aside by substituting our assumption for those of the jury when the latter are reasonably predicated. The evidentiary elements that enter into the determination of this case are so varied that we are unable to find any reasonable basis to disturb the judgment.
Other questions have been considered but they show no reversible error. The judgment appealed from is accordingly affirmed.
Affirmed.
TERRELL, CHAPMAN, HOBSON and ROBERTS, JJ., concur.
SEBRING, C.J., and THOMAS, J., dissent.
MATHEWS, J., not participating.
This action, instituted by the appellee under the provisions of Section 440.39, Florida Statutes 1949, and F.S.A., culminated in a verdict for the plaintiff, and the defendant appealed.
The device that caused the death of the plaintiff's husband is known as an Evans E-Type Automobile Loader. It consists of a rack built to accommodate an automobile, which is suspended from the top of a box car by two steel arms on each side. When an automobile is placed in the frame for shipment, the frame is raised backward and upward, describing an arc, toward the rear end of the car. When it reaches its ultimate position, four steel posts are placed underneath to make it secure. Of course, the advantage of the mechanism is to increase the capacity of a box car to four automobiles, two suspended and two underneath.
In unloading, the process is reversed, the bottom cars being removed and the racks being lowered one at a time until they rest on the car floor. The machinery for hoisting and lowering the frame is composed of a bronze gear, drum shaft, drum and cable, and a continuous chain operating on a hand chain wheel; and raising or lowering the load is accomplished by pulling one way or the other on the chain.
An SLSF car thus equipped was loaded with automobiles in a northern state, sealed, and consigned to Orlando Motors, Inc., at Orlando, where it was delivered by the appellant. To unload it, the consignee sent its crew in charge of appellee's husband. The seal was broken by one of them in the presence of an employee of the appellant railroad company, who casually inspected the interior of the car, including its contents. Then both automobiles in one end and the lower automobile in the other were unloaded without difficulty. At this point, the box car was empty except for the one automobile suspended on the loader and supported by the four steel rods.
Of course, to cause the device to swing downward in an arc toward the center of the box car it is necessary to relieve the pressure on these supports so they can be removed. This is done by slightly raising the load through the use of the chain.
Appellee's husband ordered one of his crew to pull on the chain to raise the load so these supports could be displaced, but the gear would not budge, and the crew member so advised the foreman. The foreman directed him to try again, and the result was the same. The foreman then told the workman to hold the chain tight while he, the foreman, forced out the supports. When the foreman had knocked them out he called to the workman to release the chain and lower the load, whereupon the workman inquired whether the foreman was "in the clear," and upon receiving an affirmative reply he tried to let the load down, when suddenly it gave way, swung headlong to the floor, crushing the foreman underneath and killing him instantly.
Subsequent examination showed the worm gear was stripped. As the chain wheel is turned by pulling the chain and the wheel turns the worm gear, which revolves the drum shaft and the drum on which the cable winds, the disintegration of the worm gear caused the whole apparatus to collapse.
Seven questions are posed by the appellant, but the predominant one involves the negligence of the appellee's husband as a matter of law. If this is answered in the appellant's favor, the other points need not be discussed or determined.
The unfortunate crash of the contrivance seems to have been due to a faulty worm gear which was so completely concealed in a housing that its defects could not be determined without disassembling it. The jamming of the hand chain was a sign of a serious deficiency, and notice of it was conveyed to the victim twice by the member of his crew who was operating the hand chain. Despite these ominous reports, he chose to force out of place the only supports that would prevent the crash that would inevitably follow if the lowering device was so faulty as to give way. Moreover, when his helper asked if he was in the clear he replied that he was, although obviously he was not. When the load had come to rest on the box car floor, the frame was in the approximate place that it would have been had its descent been normal, and the foreman's body was directly underneath.
Added to all this, the foreman knew what he was about. He was is charge of the work and had for two years been engaged in unloading automobiles for his employer. On more than one occasion he had instructed his helpers not to stand under the automobiles that were being unloaded; or, to take it verbatim from the reply of one of his crew: "He told us don't go under the car." From the very nature of the operation, this admonition meant not to stand in the path of the load as it descended. Another circumstance which is significant is that in the process of unloading this particular car, it was noted that one of the automobiles had become scratched; whereupon the inspector in the employ of the railroad was summoned so that he could examine the damage. Yet when it was plain to everybody engaged in the work that the mechanism was so defective that it could not be used to relieve the tension on the supports, the foreman took the responsibility of trying to get the contraption to the floor without making any further investigation or having one made.
I think what has been related clearly establishes the fact that the death of the appellee's husband was traceable wholly to his own negligence. In reaching this conclusion I have not undertaken to weigh the evidence of the plaintiff against that of the defendant or to trespass on the province of the jury, for all we have stated in describing the manner in which this accident occurred has been taken from the testimony introduced by the plaintiff.
I conclude that the judgment should be reversed so I dissent.
SEBRING, C.J., concurs.