Davis v. Florida East Coast Railway Co.

138 So. 2d 97

• Court: District Court of Appeal of Florida
• Decided: February 26, 1962
• Docket: No. 61-339
• Status: Published

Opinion

PER CURIAM.

The plaintiff in an action under the Federal Employers’ Liability Act being dissatisfied with the amount of his recovery appeals the final judgment. He assigns as error the denial of his motion for a directed verdict upon the issue of contributory negligence. The trial judge did rule that the defendant was liable under the act, but submitted the issue of contributory negligence to the jury. Appellant urges that under the comparative negligence rule applicable in Federal Employers’ Liability cases, the improper submission of the contributory negligence issue resulted in an improperly rendered verdict.

This position assumes that the jury did find the plaintiff guilty of some contributory negligence. The question then is: Is there any evidence to support a presumed finding of the jury that the plaintiff was in some degree guilty of conduct proximately contributing to the accident ?

We have reviewed the record and find evidence from which a jury of reasonable men could find that the plaintiff was negligent in failing to brace himself, after warning, for the jerk of the train which caused his injury.

Affirmed.