Opinion
November 13, 1951.
Appeal from the Circuit Court for Duval County, Charles A. Luckie, J.
Charles R. Scott, William L. Durden and Fleming, Jones, Scott Botts, all of Jacksonville, for appellant.
Chester Bedell, Nathan Bedell, Jacksonville and Thomas J. Lewis, Atlanta, Ga., for appellee.
It may be stated at the outset that all essential facts developed by the evidence in the trial of this case are undisputed, and we are therefore concerned only with the application to them of relevant principles of law.
The appellee was employed by the appellant as a "carman" in its yards at Wildwood. The duties assigned him were the coupling and inspecting of cars located on tracks designated "No. 1 West" and "No. 1 East." Between these tracks there extends for a distance of about six hundred feet an elevated platform, the surface of which is slightly higher than a box car. Chunks of ice are distributed along the platform by a conveyor chain running down the center, and from there the ice is loaded into the bunkers or hatches of refrigerator cars. This operation is exclusively controlled by a corporation independent of the railroad company. In the process of icing much ice falls to the ground between the cars and the platform.
The appellee in performing his duties was required to pass beneath the platform in going from one track to the other. On the day of the injury he had followed this course and as he proceeded from a place under the platform to the cars on the west track a block of ice fell upon him and injured him badly.
Trains are made up on these tracks, therefore, the coupling of hoses and testing of brakes are required by the railroad company to be made at this point.
The appellant first poses the question whether the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., requires a submission to juries of "all cases" involving the exercise of "such care as that act requires to furnish an employee a reasonably safe place to work." We do not feel obliged to answer it literally because it would not follow from an approval of what the trial judge did in the instant case that a judge could not direct a verdict in any other like it. The character of the evidence in each controversy would be the criterion.
At the conclusion of the plaintiff's testimony the defendant moved for a directed verdict and the judge denied the motion, making the observation that evidence had been introduced showing some negligence because the plaintiff had been ordered to ready the cars for movement "while icing was in progress." There was a question he thought, about the employer's having taken "precautions * * * commensurate with the dangers which were likely to be expected and which could be removed by the employer." He concluded that this was a question for decision by the jury.
We approve this ruling but, to repeat, in doing so we are not conscious of setting the precedent that all cases like this must be submitted to a jury.
We are convinced that there was plenty of evidence of failure to furnish a safe place for the workman. This is apparent from the nature of the work required of him and the reason for his doing it under the conditions we have described. Evidently, the only precaution taken by the appellant was an instruction to the appellee to call to men who were working above him "to hold the ice" when it became necessary for him to pass from the platform to the cars or, as he stated it, "whenever [he] went to couple up," but as was testified this would have been futile at the time he was hurt because these men had finished the last car and covered the hatch.
Even more significant than these circumstances was the availability of other tracks in the yard away from the icing platform where trains could have been inspected and assembled with relative safety. The fair and logical deduction is that the appellee was required to work in a potentially dangerous place so that the cars could be coupled and inspected and the icing could be done at the same time. Thus, the appellant was saved the delay, inconvenience and expense that would have resulted from two separate operations. This is, in our view, the crux of the case, the pivotal point which the judge quite properly thought was so well established as not to justify his withdrawing the issue from the consideration of the jury.
No objection was, or is now, made to the charges so it is assumed that they fairly guided the jury in its deliberations.
Under the Federal Employers' Liability Act, Title 45, Section 51, U.S.C.A., the responsibility of an insurer is not placed upon the employer; liability arises not from the injury itself, but from the negligence which in whole or in part is the cause of the injury. Seaboard Air Line R. Co. v. Gentry, Fla., 46 So.2d 485. We think the circumstances reflected in this record furnished the jury a sound basis for a verdict because of a breach of duty to the defendant in respect of the place where he was required to work and that this failure, in whole or in part, resulted proximately in the injury.
What we have said answers in the negative the second and last question posed by the appellant, i.e., whether the warning of the company that there was danger from falling ice and the instruction that the appellee notify those working aloft to suspend while he passed amounted to the exercise of such care as the law required.
Affirmed.
SEBRING, C.J., and TERRELL and CHAPMAN, JJ., concur.