(40 Fla. 148)

MIZELL v. TRAVELERS' INS. CO. (Supreme Court of Florida. May 10, 1898.) APPELLATE PRACTICE BILL OF EXCEPTIONS AMENDMENT BY CONSENT IN APPELLATE COURT.

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A bill of exceptions certified by the trial judge, and contained in a transcript of record, cannot be permitted to be amended in an appellate court, even by consent of parties.

(Syllabus by the Court.)

Error to circuit court, Orange county; John D. Broome, Judge.

Action by John R. Mizell against the Travelers' Insurance Company. Judgment for plaintiff, and defendant brings error. Motion to amend transcript denied.

L. D. Browne, for plaintiff in error. E. K. Foster and Beggs & Palmer, for defendant in error.

PER CURIAM. This cause coming on to be heard on motion and agreement of counse of all the parties to amend the transcript of the record and the abstracts of record by inserting matter alleged to have been inadvertently omitted therefrom, and it appearing to the court that the amendments sought to be made are additions to the bill of exceptions contained in the transcript of record, and, f allowed, will change and vary such bill of exceptions as certified by the circuit judge, which cannot be permitted to be done in an appellate court, even by consent of parties, the motion is therefore denied. Glaser v. Hackett, 38 Fla. 84, 20 South. 820, and cases cited.

1. In actions for negligence, any evidence tending to prove knowledge on the part of the person alleged to have been negligent of those circumstances and surroundings which enter into the question as to whether such person has failed to exercise proper care is admissible.

2. To entitle an employé to recover damages from his employer for personal injuries caused by the negligence of another employé, under the provisions of chapter 4071, Acts 1891, the plaintiff must himself have been free from fault, as the provisions of section 2 of that act relating to the apportionment of damages have no application to such cases.

3. In an action by an employé under the provisions of chapter 4071, Acts 1891, to recover damages from his employer for injuries alleged to have been inflicted by the negligence of another employé in performing some act in the defendant's service, in the performance of which plaintiff as a co-employé was participating, the plaintiff must show either that he was free from fault himself, or that there was negligence on the part of his co-employé. on proof that plaintiff was free from fault, the statutory presumption arises that the servants of the defendant were at fault; and it thereupon devolves upon the defendant to "make it appear" to the contrary.

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4. If the act resulting in injury to plaintiff,

an employé, was one being performed by other employés in the defendant's business, but in the performance of which plaintiff was not participating, then the presumption of negligence on the part of the agents of the defendant, and that plaintiff was free from fault, arises under the statute (chapter 4071, Acts 1891) to the same extent as if plaintiff was not an employé; and it devolves upon the defendant to relieve itself either by showing that plaintiff was at fault, or that its servants were not negligent.

5. Where a statute is adopted from a sister state, any known and settled construction placed thereon by the courts of that state prior to its adoption, not inharmonious with the policy and spirit of the general legislation of the adopting state on the subject, will prevail in construing the statute in the latter state.

6. A servant in the performance of his duties is bound to exercise ordinary care for his own safety, or that degree of care which prudent persons usually exercise under similar circumstances; and, if he is injured by failure to exercise such care, his master is not liable.

7. If, in the performance of his duties, the servant has no instructions to pursue a particular method, and two or more methods are open to him, he cannot be said to have been negligent if he in good faith adopts that method which is more hazardous than another, if the

one adopted be one which reasonable and prudent persons would adopt under like circumstances.

8. Shifting cars by means of the "kicking back" process is not necessarily at all times an act of negligence per se, even though there may be a safer method of shifting them.

9. In actions for negligence, where there is no evidence tending to show negligence of so gross and flagrant a character as to evince a reckless disregard of human life, or of the safety of those exposed to its dangerous effects, or that entire want of care which would raise the presumption of a conscious indifference to consequences, or to show wantonness and recklessness, or reckless indifference to the rights of others equivalent to an intentional violation of them, exemplary damages cannot be awarded.

(Syllabus by the Court.)

Error to circuit court, Levy county; William A. Hocker, Judge.

Action by John W. Mooney against the Florida Central & Peninsular Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

The defendant in error recovered judgment against plaintiff in error for $5,000 in the circuit court of Levy county, on November 28, 1894, from which this writ of error was taken. The declaration, filed February 22, 1894, claimed damages for personal injuries sustained by plaintiff March 1, 1893, upon defendant's railroad at Cedar Keys. It alleged that plaintiff was employed by defendant as train shifter at that point, to take charge of incoming trains, and, in accordance with instructions from its depot agent, to place cars on the side track, take others therefrom, rearrange cars in and make up outgoing trains; that, in discharging such duties, plaintiff performed the same kinds of labor ordinarily performed by conductors, brakemen, and flagmen on freight trains, and had as a co-laborer a shifting engineer who had charge of the engine, and whose duty it was to watch for plaintiff's signals, and at once obey them; that while plaintiff, on said day,

was with reasonable care faithfully discharging his duties in the most accustomed and practicable manner, his leg and fingers were crushed and mangled by defendant's train; that the injuries were caused by defendant's negligence in not providing necessary, suitable, and practicable arrangements and conveniences for plaintiff to safely discharge his duties, and by the negligence of defendant's shifting engineer in failing to obey plaintiff's signal to stop the engine and cars in time to have prevented the injury.

The defendant's pleas, filed November 28, 1894, upon which issue was joined, alleged: (1) That it was not guilty. (2) That plaintiff had for years been in defendant's employment as train shifter at Cedar Keys, was well acquainted with all dangers incident to shifting cars in and around defendant's track at that point, and with the condition and location of the switch, platform, and tracks, which were then in the same condition as they had been for years prior thereto; that, on the date alleged, defendant's train, on its arrival at Cedar Keys, was turned over to plaintiff; that one N. F. Launt acted as hostler in charge of the engine; that plaintiff took charge of the train to shift same, and, while it was backing, plaintiff jumped off a car to a switch platform which was wet; that he fell under the car, and it passed over him, causing the injury; that the accident was due wholly and entirely to plaintiff's negligence, and not to any negligent act of the defendant or any of its servants or agents. (3) That plaintiff's injury was not due to the negligence of defendant's servant who had charge of the engine that was backing the train, but was entirely the result of an accident, for which defendant was in nowise responsible.

It appears from the evidence that the injury occurred on March 1, 1893, shortly after 7 o'clock, about three-quarters of an hour after the train arrived; that defendant's warehouse and depot at Cedar Keys was located on a wharf some distance from the shore; that about 60 feet from the shore, out on the trestle, a side track ran into the main track, and the switch for this side track was operated on a platform about 12 or 15 feet square, situated about 10 feet from the ground underneath; that on this occasion the ground underneath was dry, though at high tide it was always covered with water. In shifting cars and making this switch, certain signals were in use between the plaintiff and Launt, the shifting engineer; and previous to this time the signals had always been understood and obeyed by the engineer in shifting cars in the same position on the same tracks. On the evening in question, plaintiff had to use a lantern to see what he was doing, on account of the darkness. The train was composed of the engine, a box car, a flat car, an express car, and passenger coaches, in the order named. Plaintiff was required to run the express car and coaches

down on the main track, towards the shore, past the switch, and the remainder of the train, with the engine, out on the side track, towards the shore, for a car to be brought back upon and backed down the main track, and attached to the express car and coaches. The train backed out from the depot. Plaintiff was on the platform of the express car next to the engine, and, when the platform of the express car was about three car lengths from the switch, plaintiff pulled the pin, disconnecting the flat car and express car, and signaled the engineer, with his lantern, to stop. The flat car and express car parted company. up, but did not stop.

The engineer slowed When the platform of

the express car was opposite the platform of the switch, plaintiff stepped to the switch platform, and fell. The express car and passenger coaches passed on, and the cars attached to the engine passed over plaintiff's limbs, and dragged him along the switch platform until he fell on the ground underneath. This process of shifting cars, known as "kicking cars," was very dangerous, though, according to plaintiff's testimony, it was universally practiced on all railroads, and he had no instructions not to shift cars in this manner. Plaintiff had all night in which to perform this work; had the entire control of the work, the engineer being subject to his orders. There was another and less dangerous, but less expeditious, method of shifting these cars in the manner desired, but it had never been practiced by plaintiff at this point. The following printed rules of the company, known to plaintiff prior to the injury, were in evidence: "Stepping upon the front of approaching engines, jumping on or off trains or engines moving at a high rate of speed, getting between cars while in motion to uncouple them, and all similar imprudences, are dangerous, and in violation of duty. * The company does not wish or expect its employés to incur any risks whatever from which, by exercise of their own judgment and by personal care, they can protect themselves, but enjoins them to take time in all cases to do their duty in safety, whether they may at the time be acting under orders of their superiors or otherwise." There was evidence tending to show that plaintiff had been often warned by defendant's depot agent, though not in his official capacity or as a representative of the company, of the danger incident to making "running switches" or "kicking cars"; that the engineer on this occasion did not see any signal either to stop or slow down, but that, in accordance with his previous custom in such cases, he did slow down when he got to what he thought was the proper distance from the switch, and kept backing the train slowly until it passed over the switch, when he ascertained for the first time that plaintiff was hurt; that it was understood between plaintiff and the engineer before the train left the depot that the engine was not

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to stop, but only to slow down at a certain point; that this understanding was carried out by the engineer; that signals to stop were always given from the switch platform, and the engineer was never on the lookout for a signal from the car platform. plaintiff was asked, "How long had Ned Launt been shifting engines at Cedar Keys before the injury?" Defendant objected to this question, upon the ground that same was impertinent, did not tend to prove any of the issues in the cause, and tended only to show the competency or incompetency of the engineer. The objection was overruled and the witness answered, "About two or three weeks, but I don't know exactly."

At plaintiff's request the court instructed the jury that: (1) If they believed from the evidence that, at the time the plaintiff was alleged to have been hurt, he had not been guilty of fault or negligence, and that he was injured by the fault or negligence of the engineer, they should find for the plaintiff. (2) If they believed from the evidence that, at the time the plaintiff was alleged to have been hurt, he had not been guilty of negligence or fault, unless the company made it appear that the engineer exercised all ordinary and reasonable care and diligence, the presumption in such case being against the company, they must find for the plaintiff.

At defendant's request the court instructed the jury that: (1) A railroad employé always assumes the ordinary risks of his employment, and, if you find from the evidence that the plaintiff was injured as a result of the ordinary risks run by men of like employment, you must find for the defendant. (2) The fact that employés of a railroad company were in the habit of switching in a peculiarly dangerous manner, when the switching might be done in another and less dangerous manner, does not excuse a man in following such dangerous custom, unless he does so by express orders of his superior officer. If, therefore, an employé assumes without special orders to follow such peculiarly dangerous custom, he assumes the risk; and, if he is injured, he cannot recover.

The court charged the jury of its own motion as follows:

"The charges requested by counsel in this case, and which have been given to you by the court, are so meager that I do not consider them as covering the entire law of the case. I shall therefore supplement the charges which have been given to you by giving you another charge,-the act of the legislature which governs this case. I shall read to you chapter 4071 of the Acts of 1891, as follows:

“Section 1. A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it

appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.

"Sec. 2. No person shall recover damages from a railroad company for injury to himself or his property where the same is done by his consent, or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to him. "Sec. 3. If any person is injured by a railroad company by the running of the locomotives or cars, or other machinery of such company, he being at the time of such injury an employé of the company, and the damage was caused by negligence of another employé, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to a recovery. No contract which restricts such liability shall be legal or binding.'"

The court further instructed the jury of its own motion: "As to the damages to be allowed in this case, in the event that you should find for the plaintiff, there are two kinds of damages to which I call your attention. Damages are either compensatory or punitive. Compensatory damages are defined as such as arise from actual and indirect pecuniary loss, mental suffering, value of time, actual expenses, and bodily pain and suffering. Exemplary, vindictive, or punitory damages are such as blend together the interests of society and of the aggrieved individual, and are not only a recompense to the suffering, but also a punishment to the offender and an example to the community. But punitive or exemplary damages can only be allowed in peculiar cases. Exemplary damages can be allowed in cases of negligence only where the negligence is of a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness, recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them."

The defendant requested the following instructions, which were refused: "(1) To entitle the plaintiff to recover, he must show that the injury was caused by the negligence of the engineer, and also without any fault on his own part. (2) Unless the plaintiff has shown both negligence on the part of the engineer, and that he was himself without fault, you cannot give him a verdict. No amount of sympathy for him or his family can justify you in giving him damages. (3) If you find from the evidence that the plaintiff was injured while performing a dangerous work,

and that he could have done the work in a less dangerous way, but that he voluntarily chose a more dangerous way, and was injured in consequence, that he is not entitled to recover, and you must find in favor of the defendant. (4) I charge you that if the evidence shows you that the defendant voluntarily undertook to do the work, in the performance of which he was injured, in a manner in which he had been warned against by an official of the company, and that he might have done the work in a less dangerous manner, then he was guilty of what the law calls 'contributory negligence,' and he cannot recover, even though the engineer was in fault."

The defendant excepted to the following rulings of the court, and has here assigned them as error: Overruling objections to the question propounded to plaintiff as a witness, "How long had Ned F. Launt been shifting engines at Cedar Keys before the injury?" giving the second instruction requested by the plaintiff; refusing the first, second, third, and fourth instructions requested by defendant; giving its own instructions upon the subject of punitive or exemplary damages; and giving, in its charge to the jury, sections 1 and 2, c. 4071, Acts 1891. Other facts of the case are stated in the opinion.

Fletcher & Wurts, for plaintiff in error.

CARTER, J. (after stating the facts). I. The court did not err in overruling objections to the question propounded to plaintiff, "How long had Ned F. Launt been shifting engines at Cedar Keys before the injury?" Launt was the engineer in charge of the engine at the time of the accident. It was his alleged negligence which caused plaintiff's injury. The length of his service as shifting engineer at this point was material as bearing upon his knowledge of the location and situation of the main tracks, side tracks, switches, the methods of operating them and of shifting cars at this particular place, as well as the customary duties of the men employed thereat, and the system of signaling in use by them. The question had no tendency to elicit testimony as to the engineer's competency, as argued by plaintiff in error. It did not inquire how long Launt had been a shifting engineer, but how long he had been shifting engines at this particular place. It tended to elicit evidence showing a knowledge upon the part of the engineer of his surroundings, and the conditions existing at the time of the accident, and it can never be irrelevant or impertinent to prove a knowledge on the part of one alleged to have been negligent of those surroundings and circumstances which enter into, and often control, the question as to whether such person has failed to exercise proper care.

II. There was no evidence tending to show any negligence on the part of the defendant in failing to provide necessary, suitable, safe, or practicable arrangements and conveniences

for the plaintiff as its train shifter at Cedar Keys, but only that plaintiff's injuries were caused by negligence of defendant's shifting engineer. What we decide in this case, therefore, has no reference to a case where the master's own negligence, and not that of his employé, causes injury to another employé. It is admitted in the declaration, and clearly shown by the evidence, that plaintiff and Launt were co-employés, engaged in the same common work; and, independent of statutory enactments, the defendant, their employer, would not be liable to either for injuries caused by the negligence of the other, in the course of such employment. Camp v. Hall, 39 Fla. 535, 22 South. 792, and cases therein cited.

In 1887 our legislature passed chapter 3744, approved June 7, 1887, entitled "An act to apportion the damages in actions against railway companies by persons and employés, and to provide for such recovery of damages against said railway companies by its employés." This act contained only two sections, and is quoted in full in Duval v. Hunt, 34 Fla., at text, p. 104, 15 South. 879. In 1891 the legislature passed chapter 4071, approved May 4, 1891, entitled "An act defining the liabilities of railroad companies in certain cases." The first, second, and third sections of this act are quoted in the court's charge to the jury in this case; the fourth section in express terms repeals chapter 3744, Acts 1887; and the fifth section puts the act into effect from its passage. It was held by this court in Duval v. Hunt, supra, that the act of 1887 was adopted from the statutes of our sister state, Georgia, and that any known and settled construction placed thereon by the courts of that state prior to its enactment in this state, not inharmonious with the policy and spirit of our own general legislation on the subject, would prevail in construing the statute in this state. It was further ruled in that case, in conformity to decisions from the supreme court of Georgia construing their statute, that the apportionment of damages authorized by the first section of our act of 1887, in cases where both parties were at fault, had no application to the cases provided for by the second section, and that, in cases embraced within said second section, the employé injured by the negligence of another employé, in order to recover against the employer, must himself be entirely free from fault. The second and third sections of the act of 1891 are substantially but re-enactments of the act of 1887, so far as they apply to the facts of this case, although there are some changes in the phraseology. But the act of 1891, by section 1, enacts a provision entirely new to the statutory laws of this state, but which we find is in the state of Georgia a part of the same statute from which section 2 of our original act of 1887 was, in Duval v. Hunt, supra, declared to have been taken. This provision stands as section 3033 of the Georgia Code of 1882, in language identical with the first section of our act of 1891. The supreme court of Georgia, in Campbell v. Rail

road Co., 53 Ga. 488, held that, under the provisions of section 3033 of the Code (corresponding to the first section of our act of 1891), an employé embraced within the provisions of their Code, § 3036 (corresponding with the second section of our act of 1887, and third section of our act of 1891), in order to recover damages, must show that his injury was caused without fault or negligence on his part, but that the company must prove that its agents have used proper care and diligence. In the case of Thompson v. Railroad Co., 54 Ga. 509, the previous decision seems to have been overlooked until after the latter case was disposed of; and it was there held that the statute placed the burden upon the company to defeat plaintiff's right of recovery, either by showing that plaintiff was negligent, or that its agents were not negligent. In subsequent decisions, the two cases above referred to were reconciled; and it was declared that in suits by an employé to recover damages from his employer for injuries alleged to have been inflicted by the negligence of another employé in performing some act in the master's service, in the performance of which plaintiff, as a co-employé, was participating, the plaintiff must show either that he was free from fault himself, or that there was negligence on the part of his co-employé; that, upon proof of the fact that plaintiff in such a case was free from fault, the statutory presumption arose that the servants of the company were at fault, and it thereupon devolved upon the company to "make it appear" to the contrary. If, however, the act by which the employé was injured was one being performed by other employés in the master's business, but in the performance of which plaintiff was not participating, then the presumption of negligence on the part of the agents of the company, and that plaintiff was free from fault, arose under the statute, to the same extent as if the plaintiff was not an employé, and it devolved upon the company to relieve itself, either by show ing that plaintiff was at fault, or that its servants were not negligent. Railway Co. v. Campbell, 56 Ga. 586; Railroad Co. v. Kelly, 58 Ga. 107; Railroad Co. v. Kenney, Id. 485. This construction of the statute was well settled in Georgia, long before the provisions of our act of 1891 were adopted in this state, and is still adhered to, as will be seen by reference to the following decisions: Railroad Co. v. Sears, 59 Ga. 436; Railroad Co. v. Roach, 64 Ga. 635; Railroad Co. v. De Bray, 71 Ga. 406; Railway Co. v. Barber, Id. 644; Railroad Co. v. Ivey, 73 Ga. 499; Railroad Co. v. Maloy, 77 Ga. 237, 2 S. E. 941; Railroad Co. v. Bryans, 77 Ga. 429; Railroad Co. v. Small, 80 Ga. 519, 5 S. E. 794; Railroad Co. v. Nash, 81 Ga. 580, 7 S. E. 808; Railroad Co. v. Vandiver, 85 Ga. 470, 11 S. E. 781; Railroad Co. v. Phillips, 90 Ga. 829, 17 S. E. 82. Following our ruling in the case of Duval v. Hunt, supra, we think this construction placed upon the statute by the supreme court of the state of Georgia is binding upon us in the present

case. The plaintiff having been injured by the alleged negligence of a co-employé in performing an act about defendant's business, in which plaintiff, as an employé, was participating, no presumption of liability arises against the defendant until it is shown either that plaintiff was not at fault, or that his co-employé was. The second instruction on behalf of plaintiff was, as applied to these facts, correct, and there was no error in giving it.

The first and second instructions requested by defendant were properly refused, because they required plaintiff to prove that he was without fault, and that defendant's agent was negligent, without giving him the benefit of the statutory presumption upon proof of one of these facts only.

The court said to the jury that the instructions given on behalf of the plaintiff and defendant did not cover the entire law of the case, and then proceeded to charge them in the language of the first three sections of the act of 1891. It was error to give without qualification or explanation the broad language of the first and second sections of that act, for the language of the first section was calculated to impress the jury with the idea that all presumptions were against the company, and that it devolved upon it to make it appear that its agents had exercised all ordinary and reasonable care and diligence, while, as we have seen, in a suit of this character by an employé, no presumption against the company arises, nor is it required to "make it appear" that its agents have exercised proper diligence until and after plaintiff has shown either that he himself was without fault, or that his injuries were caused by the negligence of a co-employé. The language of the second section of the act of 1891 was calculated to impress the jury with the idea that they could apportion the damages between plaintiff and defendant in case they found that the plaintiff and the defendant's agents were both at fault; whereas, as we have seen, there can be no apportionment of damages in a case of this kind. In order for an employé to recover, he must be free from fault. Duval v. Hunt, supra.

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III. The third instruction requested by defendant was properly refused. It is sought to be sustained in this court upon the theory that the facts therein stated would constitute contributory negligence. The language of this instruction is apparently approved in many decisions, most of which are collected in Bailey's Personal Injuries, Relating to Master and Servant (volume 1, p. 392 et seq.). an abstract proposition, we do not think this instruction can be sustained upon principle. The servant, in the performance of his duties, is bound to exercise ordinary care, or that degree of care which prudent persons usually exercise under similar circumstances; and, if he is injured by failure to exercise such care, his master is not liable. Wood, Mast. & S. § 372. If, in the performance of his duties, two or more methods are open to