John W. MARTIN, as Trustee of the Property of Florida East Coast Railway Company, Appellant, v. Maynard R. TINDELL, Appellee, 98 So. 2d 473

O’CONNELL, Justice. Maynard R. Tindell, appellee here, was plaintiff below. John W. Martin, as Trustee of the property of the Florida East Coast Railway Company, the appellant here, was the defendant below. The parties will be referred to as they stood in the trial court. Plaintiff brought an action for personal injuries under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. On a jury trial a verdict in amount of $125,000 was rendered for plaintiff. A motion for new trial was denied, final judgment was entered and this appeal taken therefrom.

Plaintiff was a traveling mechanic for the defendant railroad. As such it was his duty to make light repairs to the cars while the train was underway. On several occasions prior to January 20, 1953, the day of the accident to plaintiff, it had been reported to the defendant that water was leaking from an air conditioning unit in the tavern car, Lake Okeechobee* in which the plaintiff sustained his injury. Although the defendant worked on the car in the railroad yard on two occasions, the cause of the leak was not discovered prior to the injury to plaintiff.

There was evidence that on the day of the accident the trainmaster was advised by the bartender assigned to the tavern car that the air conditioning unit w.as leaking and that the car should be “cut out”, but that despite this warning the car was sent out on the train when it left Miami going North. While the train 'was proceeding North* the plaintiff attempted to repair the unit so as to stop the leak which was spilling" water onto the floor of the tavern car.

Finding that he could not stop the leak,, plaintiff notified the Conductor and advised' that the car be taken out of the train because of the dangerous condition created by the water on the floor. Immediately thereafter he walked on the wet floor, slipped and fell, sustaining a back injury. Plaintiff was treated for the back injury at the East Coast Hospital Association at St. Augustine, Florida. He was also referred to other physicians by the doctors of' the hospital. Plaintiff returned to work on. May 1, 1953, at the same rate of pay but at lighter work.

On September 1, 1953, plaintiff suffered a coronary thrombosis. He was also treated’ for this condition at the East Coast Hospital Association. He contends that the ac■cident caused not only the back injury but the heart condition as well. Plaintiff filed this suit in October 19S3. It was tried in October 1954. The defendant complains that the trial court committed error in refusing to grant ■defendant’s motions for compulsory physical examination of the plaintiff. Under Florida C.L.

Rule 28, now Rule 1,29, 1954 Florida Rules of Civil Procedure, it is obvious that the granting ■of an order for physical examination is at the discretion of the trial judge. The rule reads that the court “may” order the examination and provides that “the order may be made only upon good cause shown sji * *

f) In the two motions before us the grounds •or cause shown was “to determine the exact nature and extent of the injuries alleged to have been sustained by plaintiff as a result of the negligence of the defendant.” The defendant did not state that it did not have this information. We realize that motions for compulsory physical examinations in personal injury actions are usually granted as a matter of course by trial judges, and that it is the common practice of attorneys to file a perfunctory motion such as was filed here.

In the usual situation where a plaintiff is treated by his personal physician in a private hospital so that the defendant does not have access to the reports of either the hospital or the physician such a motion might be sufficient and a denial thereof be an abuse of discretion. But in the case before us we find that the ■plaintiff was treated for his back injury •and his heart condition in the East Coast Hospital Association, a non-profit hospital ■supported mainly by railroad employees’ ■contributions with any deficit being made ■up by the defendant railroad.

There is no ■question but what the defendant had access to the hospital records and to the reports of the physicians of the hospital, and could have obtained from these records and physicians the information which would have been revealed by a compulsory physical examination. It appears that the hospital physicians were required to and did submit medical reports to the defendant’s legal staff.

The chief surgeon for the defendant was the plaintiff’s family physician and treated the plaintiff for both his bade injury and in part for his heart condition, the last treatment which he had rendered to the plaintiff being approximately two weeks prior to the trial. The defendant complains that it was prejudiced by the court’s refusal to order the compulsory physical examination because the plaintiff’s attorneys at the trial attacked the physicians who testified for the defendant as not being qualified specialists.

We realize that it is of some importance in a jury trial to have a specialist testify, yet the question before us is did the trial judge abuse his discretion in denying the motions for compulsory physical examination. Under the facts in this case we are of the opinion that the trial judge did not abuse his discretion in denying the motions for compulsory physical examination.

Defendant next contends that the plaintiff’s negligence in stepping on the wet floor which he knew to be, and which he had warned the conductor to be, dangerous was the sole proximate cause of his injury, and that, therefore plaintiff cannot recover, and a directed verdict should have been given in defendant’s favor. Under this contention defendant also argues that the plaintiff cannot recover because of the unsafe condition since it was his duty to repair and correct it. The facts of this case clearly show that the plaintiff was negligent.

Yet we cannot say that the absence of negligence on the part of the defendant was so clear as to justify the trial court directing a verdict for the defendant. The facts of this case show that the faulty condition of the air conditioner and the resulting leaking of water on the floor of the car had been reported to the defendant on at least four occasions in the six-day period prior to and including the day of the accident. The evidence shows that the cause of the flooding was a clogged drain pipe underneath the car. It could not have been repaired while the train was making its run.

If the plaintiff had been a mechanic hired to make repairs in the shop of defendant, he might not be able to complain of his injury since the correction of the defective unit would require that he work under the conditions created by the faulty mechanism. But the plaintiff was a traveling mechanic. Defendant in its brief states that his duties were to ride on certain of defendant’s trains, make inspections of mechanical equipment, make such repairs as he could while the train was en route and report any defects he observed.

The condition which caused his injury was not a result of his failure to correct a condition which he could have remedied, but rather came about because of the defendant’s use of a tavern car which it had been repeatedly warned had a faulty air conditioning unit therein which leaked water onto the floor creating an unsafe condition.

Had the defendant not been warned of the defective unit and resulting unsafe condition of the floor in the car prior to its being used on the day of the accident, or had the leak developed for the first time on the occasion of plaintiff’s injury then the liability of the defendant might well be different. We think a jury might well determine from the facts of this case that the defendant was negligent in using the tavern car on the day of plaintiff’s accident and therefore that it was not error to refuse the directed verdict for defendant.

The Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., has stricken the defenses of contributory negligence and assumption of risk. Comparative negligence has been substituted therefor. Boat Dagny, Inc., v. Todd, 1 Cir., 1955, 224 F.2d 208 and Martin v. Riley, 1 Cir., 1956, 226 F.2d 612. The negligence of the plaintiff therefore does not prevent his recovery if the defendant was also guilty of negligence.

We have carefully examined and compared the many cases, cited by counsel for defendant in their able briefs, on the question of negligence of an employee precluding recovery and the cases holding that an employee whose duty is to make repairs cannot complain that the employer is negligent for allowing a mechanism to get out of repair. We do not find such cases to be applicable here, for as above stated contributory negligence on the part of the employee does not bar recovery.

Further, in the case at bar the jury could have found the defendant guilty of negligence not for allowing the air conditioning unit to become defective, but rather for using the tavern car knowing that it was unsafe. Therefore viewing the evidence, including all inferences fairly deducible therefrom, in the light most favorable to plain* tiff, as we are required to do, we conclude that the trial judge did not commit error in denying defendant’s motion for directed verdict. Defendant next contends that the trial judge committed clear error in a charge given the jury.

After the jury had retired to consider its verdict, it returned to the court room and asked for further instructions. The following transpired: “ * * *

(1) The Court: Do you have a question to ask the Court? “

(2) The Juror: There was some contention over the fact — Everyone agreed they had no disagreement in the fact of thinking that the railroad had some responsibility in regards to the boy’s accident, but it was also considered by, I will say at least one, that there was some understanding that the boy was to a certain extent responsible for the accident, and there is the contention, I believe— “

(3) The Court: I think that has been answered by the instruction already given you. If you have found the railroad to be negligent, as you say you have found, and also find that the plaintiff has been contributorily negligent, and under the law of comparative negligence it is your duty to do this: First you determine the amount of damages you would award for the negligence of the defendant. That is one figure. Then you determine in your own minds how much you should take off of that figure for the contributory negligence of the plaintiff, and then bring in a verdict for the balance. “

(4) The Juror: Judge, if I may be permitted — I accept the responsibility. That was what I tried to be considering but I got no — I mean I was the only one. I thought it should be considered. “

(5) The Court: Well, that is your prerogative. “

(6) The Juror: That there was some responsibility, your Honor, to the boyi being an employee. The contention that it was — that part of the responsibility of the accident that happened was his responsibility, and I tried to explain that we were instructed to that effect. “

(7) The Court: You were instructed to that effect and also you were instructed to this effect: That the plaintiff occupies a different statu's from anybody else on that train because he was employed to work there and it was the duty of the railroad company to provide a safe place for him to work, and you were instructed to that effect: “

(8) The Juror: Were our instructions so as not to regard this boy as being in anywise negligent as he was an employee of the railroad which was his duty to work for a railroad ? “

(9) The Court: It was his duty to work there and it was the duty of the railroad company to provide him a safe place to work. “

(10) The Juror: Regardless of him? “

(11) The Court: No.

If he is contributorily negligent, if you find from some act of his that he was con-tributorily negligent, you must subtract' whatever amount you think he is responsible for from the full amount that you would award otherwise and bring in a verdict for the balance. * * * ” The defendant complains that the statement made by the trial judge in the foregoing exchange, items (7) and (9), are clear error since they indicate that the defendant railroad had an absolute duty to provide a safe place for plaintiff to work, while the law only requires that the defendant exercise reasonable care to provide 'a safe place for its employees to work.

There can be no dispute that this is the law. Yazoo & Mississippi Valley R. Co. v. Mullins, 1919, 249 U.S. 531, 39 S.Ct. 368, 63 L.Ed. 754; Baltimore & Ohio S. W. R. Co. v. Carroll, 1930, 280 U.S. 491, SO S.Ct. 182, 74 L.Ed. 566; Atlantic Coast Line R. Co. v. Dixon, 5 Cir., 189 F.2d 525.

It is well settled that in passing upon a single instruction or charge it should be considered in connection with all the other instructions and charges bearing on the same subject, and if, when thus considered, the law appears to' have been fairly presented to the jury, an assignment predicated upon the giving of such instructions or charge must fail, unless under all the peculiar circumstances of the case the court is of the opinion that such instructions or charge were calculated to confuse, mislead or prejudice the jury. Atlantic Coast Line R. Co. v. Crosby, 1907, 53 Fla. 400, 43 So. 318.

Further this Court in Skinner v.

Ochiltree, 1941, 148 Fla. 705, 5 So.2d 605, 607, 140 A.L.R. 410 said on the same subject “if the instructions assigned as error, considered in the light of the entire charge given, are reasonably free from error, then the charge as given will be sustained.” Standing alone the above referred to statements of the trial judge, items (7) and (9), are error but when considered in connection with the other charges given by the court, and particularly when read in connection with all of the discussion had between the trial judge and the juror on the jury’s return for further instructions we have concluded that the statements were not prejudicial error such as would infect the minds of the jury so as to cause it to use an improper yardstick by which to measure the duty and negligence of the defendant.

From a careful reading of the discussion between the trial judge and the juror as above set forth it appears that the jury had already agreed that the defendant was negligent for the juror said in his first question: “Everyone agreed that they had no disagreement in the fact of thinking that the railroad had some responsibility in regards the boy’s accident. * * ” From the juror’s questions it appears that the matter troubling him, and in which he was apparently in conflict with the remainder of the jury, was the question of comparative negligence.

The trial judge seems to have properly clarified that question by his statements. In addition to the foregoing it appears from the record that the trial judge, in the charges given at the request of both the plaintiff and defendant, on several occasions properly charged the jury that the defendant was required to use only reasonable core in furnishing the plaintiff a safe place to work, not to furnish him a safe place to work.

We are of the opinion that when considered in the light of the circumstances under which they were made and considered with all the charges given the statements complained of were not reversible error. Finally, the defendant contends that the evidence connecting the fall and back injury with the subsequent heart condition suffered by the plaintiff is so conjectural and speculative that as not to be sufficient to sustain a finding that the heart condition was related to the accident suffered by the plaintiff.

Defendant then logically reasons that if the accident is not causally related to the heart condition the verdict is excessive since $125,000 would be too great an award for the back injury alone. We are inclined to agree that on the record in this cause the verdict would be excessive for the back injury alone. Therefore we must determine whether there was sufficient competent evidence upon which the jury could have found that the back injury was causally related to the heart condition.

Defendant calls to our attention that the plaintiff did not testify about the pain, worry, anxiety and nervousness which are asserted to have followed his back injury and precipitated the heart attack. Yet through the testimony of the heart specialist who testified on behalf of the plaintiff there is sufficient evidence in the record concerning the worry, pain, anxiety and nervousness following the accident to reasonably support the conclusions given by this specialist that the fall and back injury produced conditions which precipitated the heart attack.

It is true that the doctor who treated the plaintiff for both his back and heart, and who testified for the defendant, indicated that the plaintiff’s anxiety or nervousness stemmed from plaintiff’s failure to get a promotion, while the plaintiff’s specialist in detailing the plaintiff’s case history stated that it was caused by the back injury. This presented a conflict which the jury had the right to and did resolve. We cannot say, on the evidence in the record, that they were wrong. It follows that we must reject defendant’s last contention, as we have the others made by it.

This cause has been ably argued before this Court on three occasions. It has received thorough consideration by this Court, and after such we have concluded that the judgment appealed from should be and is hereby Affirmed. TERRELL, C. J., HOBSON and THOR-NAL, JJ., and CRAWFORD, Circuit Judge, concur. DREW and BARNS, JJ., dissent.