Opinion
May 26, 1950. As Amended on Rehearing June 27, 1950.
Appeal from the Circuit Court for Duval County, Claude Ogilvie, J.
Bedell Bedell, Jacksonville, and Thomas J. Lewis, Atlanta, Ga., for appellant.
Russell L. Frink and Samuel Kassewitz, Jacksonville, for appellees.
Appellant-plaintiff brought suit in the Circuit Court of Duval County, Florida, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for injuries sustained while serving as a conductor on appellees-defendant's trains. The case went to the jury on the issues made by the amended declaration and a plea of not guilty. The jury, from the testimony adduced, found the defendants guilty of negligence and assessed the plaintiff's damages in the sum of $10,000.
The several ground of the appellees' motion for a new trial, in a broad sense, may be grouped around the following points: (1) the trial court erred in giving designated instructions to the jury; (2) the trial court erred in refusing to give designated or written instructions as requested by the appellees; (3) the verdict of the jury was against the weight of the evidence and contrary to the justice of the cause; (4) the verdict of the jury in behalf of the plaintiff in the sum of $10,000 is not supported by the preponderance of the evidence and therefore is excessive in amount. On October 5, 1949, the trial court granted the motion for a new trial unless within ten days the plaintiff filed a remittitur of damages above $3,500, in which event, the motion for a new trial be denied. Plaintiff declined to file the remittitur and appealed from the order granting the new trial.
Section 59.34, F.S.A., makes it the duty of the court on an appeal or writ of error to examine the record, to reverse or affirm the judgment, sentence or decree of the court below, or give such judgment, sentence or decree as the court below should have given or as it may appear according to law. Section 3 of the Declaration of Rights of the Constitution of Florida, F.S.A., provides that the right of trial by jury shall be secured to all and remain inviolate forever.
Our adjudications sustain the view that if a trial judge, after hearing all the testimony adduced by the respective parties litigant, reaches the conclusion that he has difficulty in reflecting the justice of the cause with the verdict of the jury and the weight of the evidence, then as a matter of law it becomes his duty to award a new trial. Likewise, if the jury's verdict fails to square with right and justice of the controversy and reasonable doubt exists in the mind of the trial court to conclude that the jury, in the consideration of the case, acted through sympathy, passion, prejudice, mistake or the verdict as rendered reflects an arbitrary or capricious action in weighing or considering the testimony and the instructions of the court upon the law, then the ends of justice require that the verdict be set aside and a new trial awarded.
It affirmatively appears from the testimony of the respective parties that the appellee-defendants failed or omitted to supply or furnish the plaintiff a reasonably safe place in which to work at the time and place he was injured; hence on the general question of liability no further inquiry should be made but an inquest should be had as to the extent and value of the injuries sustained. In such inquest evidence may be submitted by the parties on all factors which may appropriately affect the jury's decision as to the extent of damages under the controlling law. The appeal is affirmed in part and reversed in part for further proceedings.
ADAMS, C.J., and SEBRING and HOBSON, JJ., concur.