Ryan v. Noble

116 So. 766, 95 Fla. 830

• Court: Supreme Court of Florida
• Decided: April 27, 1928
• Status: Published

Opinions

Whitfield, P. J.

The declaration in substance alleges that Noble was in the employ of Ryan who was engaged in the occupation of operating automobiles for public use; that one of defendant’s trucks was transporting steel grips or beams; that plaintiff ivith six other employes of defendant Ryan was engaged in unloading said steel grips or beams from said truck; that the said seven employes of defendant lifted a beam and five of the employes having hold of the grip or beam suddenly loosened their hold and let the beam drop, due to the carelessness and negligence of the said five employes, which injured plaintiff by so smashing the index and second fingers of his right hand as to make it necessary to have them amputated; that plaintiff was wholly without fault in the premises. Damages in $15,000.00 were claimed. A demurrer to the declaration was overruled. Pleas were filed of not guilty; that the defendant was not engaged in the occupation of operating automobiles for public use, but was engaged in a private business or enterprise of hauling material from the docks to a stated gas plant by virtue of a stated private contract; assumption of risk; that the injury and damage were caused by the negligent act of plaintiffs fellow servants; that the injury was caused by the negligence of the plaintiff and of a fellow servant who were jointly engaged in performing the act causing.the injury, and defendant ivas guilty of no negligence contributing to such injury. Issue was joined on the pleas. Trial re-suited in a verdict and judgment for $6,000.00 damages. Motions for judgment non obstante veredicto and for new trial were denied. Defendant took writ of error.

The statute provides that persons, firms and corporations engaged in “operating automobiles for public use,” shall be liable in damages for injuries inflicted upon their agents and employes, caused by the negligence of such persons, firms and corporations, their agents and servants, unless such persons, firms and corporation “shall make it appear that they, their agents and servants have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against such persons, firms and corporations;” that such employers shall not be liable in damages for injuries to their employes “when same is done by their consent, or is caused by their own negligence. ’ ’ If the employer and employe “are both at fault, there may be a recovery, but the damages shall be diminished or" increased by the jury in proportion to the amount of default attributable to both; Provided, that damages shall not be recovered for injuries to an employe injured in part though his own negligence and in part through the negligence of another employe, when both of such employes are fellow servants, where the former and the latter are jointly engaged in performing the act causing the injury and the employer is guilty of no negligence contributing to such injury.” “The doctrine of assumption of risk shall not obtain where the injury is attributable to the negligence of the employer, his agents or servants.” Section 4971, 4972, 4973, 4974, -Rev. Gen. Stats. 1920.

There is legally sufficient. substantial evidence upon which to predicate the finding necessary involved in the verdict, that the defendant was ‘ ‘ operating automobiles for public use;” that the injury was proximately caused by the negligence of the defendant’s employes who were the plaintiff’s fellow servants jointly engaged with plaintiff in performing the act causing the injury and that the plaintiff was not negligent.

The defendant might not have been a common carrier, but he was engaged in operating automobiles for hire to those with whom he contracted and he contracted with members of the public as he desired. That satisfied the purpose and intent of the statute.

No harmful error appears in charges given or refused, and no abuse is shown in questioning proposed jurors as to their connection with or relation to or interest in insurance companies, in testing the qualifications of the jurors. The verdict appears to be excessive. If the plaintiff below within 30 days remits $1,000.00 as of the date of the verdict, the judgment will stand affirmed for the balance; otherwise the judgment will stand reversed for a new trial.

It is so ordered.

Terrell and Bueord, J. J., concur. Ellis, C. J., and Strum, J., concur in the opinion and judgment. Brown, J., concurs specially.