Bartholf v. Baker

This case originated in the Circuit Court in and for Duval County. The action is one for damages . for personal injuries. The complaint charged that Bartholf was guilty, of negligence in that he failed to provide for Baker a reasonably safe .place in which to work. Answer was filed which denied the asseverated negligence and presented defenses (which are affirmative in character) of assumption of risk and contributory negligence. Consequent upon the jury’s verdict in favor of Baker the court entered judgment in the sum of $20,000 against Bartholf. This appeal ensued.

Appellee Baker was employed to work in the dairy owned and operated, by appellant Bartholf. He was assigned to duties inside the milking shed. One day about three weeks after he was employed the foreman who employed Baker directed him to help drive a cow into the barn. The cow was driven to a concrete ramp leading into the barn. She proceeded part, way up the ramp. Baker was behind her and to one side. The cow, instead of going into the barn, turned around and charged toward Baker [as he expressed it, “she come at me”]. Baker stumbled and fell in- an attempt to get out of her path. Before he could regain his feet the cow slipped and fell on his left leg, breaking Baker’s ankle.

The gist of this action is that Bartholf failed to provide a reasonably safe place for Baker to work. Specifically it is alleged that the negligence was in permitting this ramp to be “uneven”. The jury was justified, upon its consideration of the testimony given concerning the circumstances surrounding the injury, in deducing or inferring that the “uneven” place in the ramp was a proximate cause of the injury. However, the fact that an injury occurred, as well as that a proximate cause thereof can be attributed to a condition of the ramp, does not impute negligence to Bartholf, the owner-employer. It must be shown that Bartholf was negligent in permitting this uneven condition to exist.

The purpose of this ramp was to provide the cows an easy means of ingress and egress into and from the barn. It is generally known that animals with hoofs ofttimes slip when traversing an incline unless adequate footage is provided. It is not contended by Bartholf, however, that this particular uneven ledge was constructed for that purpose. Moreover, it did not substantially serve such purpose.

We recognize the fact that if the uneven ledge substantially served such purpose it would become immaterial whether the ramp was designedly or fortuitously so constructed.

It was the jury’s prerogative, and not that of this court, to determine from all the facts presented to it whether the risk of injury to an employee was sufficiently great to over-balance the utility of the “uneven” ledge. Obviously the jury determined that the risk of injury to an employee was of such magnitude as to outweigh the dubious utility of the “uneven” ledge. See Restatement, Negligence, Section 291, et seq.

It appears from the evidence that this ramp was made up of two slabs of concrete apparently laid at different times and which did not fit together evenly. The so-called “uneven” ledge was thus created and from the evidence the jury had the right to believe that said ledge was slightly more than 1 Yz inches in height and attributable to faulty construction. Had there been several or many such ledges it might be said that they substantially served the purpose of preventing the cows from slipping while traversing the ramp. One ledge of this type on a ramp, however, could serve to keep the cows from slipping only to a very slight or inconsequential extent or degree.

The question of negligence was for the jury because it hinges primarily upon a disputed state of facts and the facts which were not controverted were such that different minds might reasonably draw diverse conclusions from them.

The jury had the right to believe Baker’s testimony that he had only been on the ramp one time and “had not paid no attention to it [the “uneven” ledge].” It also had the right to believe his testimony that he did not know the very pertinent fact (which the foreman did know) that the cow had just had a calf. It is a matter of common knowledge among those engaged in work around dairies and as tenders of cows that a fresh-calved cow, when separated from her offspring, usually uses every means at her command to return to her progeny. We are convinced that the jury was justified in deciding that Bartholf was negligent in permitting this “uneven” ledge to remain on the ramp and that he 'failed to provide a reasonably safe place for his employee, Baker, to perform the unusual duty of attempting, at the pressing directive of his boss, unwittingly to drive a fresh-calved cow separated from her calf, into the barn.

It was entirely appropriate for the jury to determine, as it evidently did, that the “uneven” ledge was the result of faulty construction; that Bartholf knew of its existence and failed to correct the condition and that he was guilty of failing to provide a reasonably safe place for Baker to work. The question of contributory negligence, Atlantic Coast Line R. Co. v. Gary, Fla., 57 So.2d 10, as well as that of assumption of risk, Wilson & Toomer Fertilizer Co. v. Lee, 90 Fla. 632, 106 So. 462, was properly submitted to the jury.

Apparently appellant would have this court decide that Baker voluntarily went to the assistance of his foreman while the latter was attempting to drive the cow into the barn and in so doing he assumed the risk of injury. This we cannot do because the jury had the right to believe that Baker did not go of his own accord,' but was -instructed by the foreman who employed him to assist in driving the cow into the barn. Moreover, the jury had the right to consider the fact that Baker was about his ordinary duties in the barn when the foreman suddenly directed Baker to come to his (the foreman’s) assistance and to infer that in carrying out the emergent command of his superior the appellee did not have the forethought and possibly did not have the opportunity to remove the rubber boots which he was wearing. It is customary for dairy hands whose usual duties are performed within the milking shed, the floor of which is frequently wet from washing and scrubbing for the sake of cleanliness, to wear rubber boots. The locomotion of an ordinarily agile person becomes clumsy when he is wearing rubber boots, which fact becomes poignantly evident when one is placed in the position in which Baker 'found himself as tbfe resuHfof obeying the exigent directive of his employer, delivered by the employer’s agent—the foreman.

Moreover, the jury may have concluded that in attempting to assist the foreman in driving the cow into the barn Baker had stepped into some fresh cow dung which would make the sole of a rubber boot slippery and which, it is commonly known, is frequently found in cow lots and about dairy barns.

It is true that Baker testified he caught the heel of his rubber boot on the “uneven” ledge. However, the jury not only could, but should, have viewed the circumstances attendant upon the accident which caused appellee’s injury in the light of human experience. Everybody knows that when a person trips on one foot, if there be nothing staunch onto which he can grasp, he instinctively attempts to regain his balance by placing his other foot upon solid ground. It was entirely appropriate for the jury to conclude that the appellee followed such uniform pattern and that the boot on the other foot was wet or dungy, hence slippery, in which event he could not avoid falling to the ground, nor could he extricate himself from his perilous position.

Baker did go help the foreman without objection but we do not believe that he was in a position, nor under the duty, to object because the person who directed him to aid in getting the cow into the bam was the foreman—Bartholf’s agent and the person who employed Baker—and the jury had the right to believe Baker’s testimony that his ordinary duties did not require him to traverse the ramp; he had only been over the ramp one time and that although he had seen the “uneven” ledge he had paid no attention to it. All of which obviously led the jury to the reasonable, if not inescapable, inference that he did not appreciate the risk involved. He knew of no reason to object to carrying out the clamant directive of his boss.

Voluntary exposure is the bedrock upon which the doctrine 'of assumed risk rests. Appreciation of the danger is an essential to the defense of assumption of risk, or of contributory negligence, as is knowledge of the condition- which creates the peril.

We must bear in mind the important fact that the jury had the right, upon a consideration of all the testimony, to decide that the nature of the work which Baker was employed to perform was entirely different from that which he was called upon in an emergency to perform; that the place where the accident occurred was not the place 'furnished by the employer in which the appellee was expected to carry out his usual, customary and ordinary duties as an employee, and hence Baker was not in a position to comprehend the danger.

Although the question whether Bartholf was negligent is a close one, this court is not justified in substituting its judgment for that of the jury or in reversing the learned Circuit Judge because he submitted this case to the jury, refused to grant a motion for a directed verdict at the conclusion of the plaintiff's case and denied a motion for a new trial. Unless there is no evidence in an action of this type from which the jury could reasonably infer negligence, the case should be. left with the jury. So far as the defense of assumption of risk or that of contributory negligence is concerned, there is no doubt that the jury was entirely justified in deciding as it .did, in favor of appellee.

Another and more serious question is presented by the challenge that the verdict is excessive. We have repeatedly held that we will not reverse a case for a new trial on the ground that the verdict is excessive, unless it appears upon a consideration of all the testimony that the verdict was so much greater than it should have been as to shock the judicial conscience. We have also held that the burden is upon the appellant to establish the fact that the verdict is wholly unsupported by the evidence or was the result of passion, prejudice or other improper motive. See First Federal Savings & Loan Ass’n v. Wylie, Fla., 46 So.2d 396.

On the other hand, we have never hesitated to reverse a case because of an excessive verdict if the verdict which was rendered is not even suggestively sustained by the evidence. When either a trial judge or this court determines that the verdict of a jury is so excessive as to shock the judicial conscience someone invariably accuses either or Both of usurping a prerogative of the jury and substituting the court’s judgment for that of the jury, thus tending to disparage our system of trial by jury. We are inclined to answer such suggestion by quoting from the case of Virginian Ry. Co. v. Armentrout, 166 F.2d 400, 408, 4 A.L.R. 2d 1064, wherein the Circuit Court of Appeals of the. Fourth Circuit, speaking through'Judge Parker, said:

“It-is for the jury to fix the amount but they -must do this within the bounds of reason, and a verdict on which the mere interest at 3% amounts to more than five times the maximum allowed by the state compensation laws and $1,800 per year more than the judge estimates the loss of adult earning power is manifestly too much.

“The power and duty of the trial judge to set aside the verdict under such circumstances is well established, the exercise of the power being regarded as not in derogation of the right of trial by jury but one of the historic safeguards of that right. Smith v. Times Pub. Co., 178 Pa. 481, 36 A. 296, 35 L.R.A. 819; * * * The matter was well put by Mr. Justice Mitchell, speaking for the Supreme Court of Pennsylvania in Smith v. Times Pub. Co., supra, 178 Pa. 481, 36 A. 298, as follows: ‘The authority of the common pleas in the control and revision of excessive verdicts through the means of new trials was firmly settled in England before the foundation of this colony, and has always existed here without challenge under any of our constitutions, it is a power to examine the whole case on the law and the evidence, with a view to securing a result, not merely legal, but also not manifestly against justice, —a power exercised in pursuance of a sound judicial discretion, without which the jury system would be a capricious and intolerable tyranny, which no people could long endure. This court has had occasion more than once recently to say that it was a power the courts ought to exercise unflinchingly.’ (Italics supplied.)”

We have carefully considered the testimony in this case with reference to the extent of Baker’s injuries and have concluded that the verdict in the sum of $20,000 is excessive. Baker was a man 59 years of age at the time of his injury, or at least at the time he testified in this .case. The maximum amount which he was earning, including his salary, the reasonable value of the rental of the house he occupied and the 2 quarts of milk a day which he received from Bartholf, was a little over $2,800 per year. His life expectancy was 15.61 years. If he had been totally and permanently disabled the present worth of his loss of future earnings would be over $30,000. However, the testimony shows that at the time of the trial he only had a 90% disability of his ankle. If he should decide to have a fusion, operation performed, which was advised by the orthopedic surgeon who attended Baker and who testified in this case, such operation would cost $500 and he would lose a little more than $1,400 in earnings because he would be unable to work after the operation for a period of approximately six months. Up to the time of the trial Baker lost in income approximately $1,157. His medical and'other expenses occasioned ■ by the accident amounted to $374.30.

Upon a consideration of these figures, we conclude that the verdict of $20,000 including a sum for pain and suffering of at least $15,000 is excessive, not only because the proof of pain and suffering is meager but also because of the medical testimony to the effect that if the fusion operation is performed it will “offer him a stable ankle” and alleviate the -pain in the ankle, albeit some pain might develop in other joints of Baker’s foot. The fusion operation would leave Baker with a limp but we find no evidence to the- effect that he would be unable to carry on his usual occupational duties.

Although Dr. Raybin testified “there won’t be normal use of the limb, but he will be able to use it and get around with.it”, (italics supplied) there is no substantial evidence which tends to show to what extent, degree or percent, ’if any, Baker’s earning capacity will be impaired. This is a matter which cannot properly be determined, even by a jury, upon mere speculation or conjecture.

This cause is remanded to the circuit court with directions that the able trial judge enter an appropriate remittitur which he is in better position to do than are we because he heard all of the testimony and, in effect, sat as a seventh juror. If in the opinion of the trial judge it should be impossible for him to fix and determine a proper amount of remittitur, then in the alternative, he is directed to grant a new trial on the question of damages only.

TERRELL and THOMAS, JJ., and WALKER, Associate Justice, concur.

ROBERTS, C. J., and SEBRING and DREW, JJ., dissent.