[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 487 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 488 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 489 Defendant in Error, a train switchman in the employ of the Plaintiff in Error, was injured August 2, 1935, as he was boarding a passenger car attached to a mixed train in the railroad yards at High Springs, Florida. He was on duty at the time and was one of the switching crew which was shifting cars and placing them on "what is known as the cab track." The switching crew was engaged at the time in breaking up the Perry mixed local, and had all the cars placed but two, one of which was the passenger car number 910 on which plaintiff was injured. He had thrown the switch and as the passenger car passed to be placed on the siding, with lantern in his right hand, he caught the grabiron or hand hold with his left hand to get on the platform. In attempting to pull himself up, the grab iron came loose at the top and in trying to catch with the *Page 490 other hand, he was thrown around and fell in a squatting position against the steel steps of the car striking the end of his spine resulting in serious injury.
He went to the hospital of the plaintiff in error provided for the employees where he was treated for some time and discharged. He was several times returned to the hospital for treatment but without effecting a cure. He incurred doctors', nurses', and drug bills in large amounts, has suffered severe and excruciating pains, has not been able to work since the accident, is nervous, does not sleep, suffers with extreme headaches, and has been pronounced permanently disabled.
He brought this action in January, 1936. A motion for compulsory amendment of the declaration was denied and the case was tried on the issue made by the plea of not guilty resulting in a verdict in favor of the plaintiff for $50,000, which was on motion for a new trial reduced by remittitur to $15,000. A final judgment was entered and the defendant sued out writ of error.
The first question urged charges error in the order of the trial court overruling defendant's motion for compulsory amendment of the declaration. The purpose of the motion was to require the plaintiff to aver or set out in his declaration whether he relied on State or Federal law for recovery.
In actions of this kind, recovery may be had on the basis of common law negligence, the State Hazardous Occupation Act, or the Federal Employee Liability Act, or two or more of these acts may be involved in the recovery. The Federal Acts can have no application unless the train on which plaintiff was injured was at that time engaged in interstate commerce. The declaration in this case has been examined and we fail to find anything to suggest that the *Page 491 Federal Safety Appliance Act or other Federal act was relied on for recovery.
We approve the rule in this State that good pleading requires that ultimate facts only be alleged in the declaration but in cases of this kind, where both a federal and a State law are relied on, the declaration should contain allegations to put the defendant on notice of this fact. If the State Hazardous Occupation Act alone is relied on, the declaration is sufficient but the proof can reach nothing but the question of negligence and the defendant may rebut this.
The reason for this rule is apparent. If both State and Federal law are relied on, the defense and the proof will be materially different. If the Federal law is relied on, the question of interstate commerce becomes important, in fact to that extent is the gist of the action and the defendant is entitled to know this in order to prepare his defense. If the Federal Safety Appliance Act is relied on, the defense of contributory negligence and assumption of risk are not applicable. If the State law only is relied on, federal questions may be merely incidental, but in either event, the defendant is entitled to know what he has to meet.
It is quite true that the Federal Safety Appliance Act requires all cars and vehicles whether engaged in interstate or intrastate commerce, to be equipped with safety devices, but if engaged in intrastate commerce, the action arises under State law and the Federal Safety Appliance Act must be read as in pari materia with the State law if it in any way influences the decision. Moore v. Chesapeake Ohio Railway Co. 291 U.S. 205, 54 Sup. Ct. 402, 78 L. Ed. 755.
If at the time of the injury, the train on which plaintiff was injured was engaged in interstate commerce and the injury was from failure to comply with the Federal Safety Appliance Act, the defense of contributory negligence and *Page 492 assumption of risk are not available, they having been abolished by that act as to actions arising in interstate commerce, but such defenses not having been abolished in this State, they are available if the train at the time of the accident was engaged in intrastate commerce.
The Federal Safety Appliance Act does not give a right of action for damages when not observed. It requires that all instrumentalities used in interstate or intrastate commerce be equipped with safety devices, and if not done, and injury results therefrom, if the action arose in interstate commerce, it is only necessary to prove that the instrumentality was not so equipped. The declaration nowhere alleges that the defendant was a common carrier engaged in interstate commerce nor does it contain allegations that would lead one to infer that this was the case. If this fact is to be relied on for recovery, defendant was entitled to be so advised because both this measure of liability and its defense would be affected. St. Louis S.F. T.R. Co. v. Seale, 229 U.S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129; Toledo Co. v. Slavin, 236 U.S. 454, 35 Sup. Ct. 306, 59 L. Ed. 671; Garret v. L. N.R. Co., 235 U.S. 308, 35 Sup. Ct. 32, 59 L. Ed. 242; Hogarty v. Philadelphia Reading Ry. Co., 255 Pa. 236, 99 A. 741.
We have examined S.A.L. Ry. Co. v. Hess, 73 Fla. 494, 74 So. 500; C.H. N. Ry. Co. v. Truette, 81 Fla. 152, 87 So. 427, text 431; Jacksonville Terminal Co. v. Alston, 112 Fla. 423,152 So. 14; Kansas City Western Ry. Co. v. McAdow, 240 U.S. 51, 36 Sup. Ct. 252, 60 L. Ed. 520, and other cases relied on by defendant in error but we think the facts involved clearly distinguish them from the case at bar.
The question of whether or not the defendant was engaged in interstate commerce at the time of the accident or with instrumentalities used in interstate commerce is one *Page 493 of fact and is determined by the work he was actually doing at the time rather than the work he had previously done or expected to do in the immediate future. Illinois Central R. Co. v. Bahrens, 233 U.S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051; Erie R. Co. v. Welsh, 242 U.S. 303, 37 Sup. Ct. 116, 61 L. Ed. 319; Chicago, B. Q.R. Co. v. Harrington, 241 U.S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941; Pope v. Utah-Idaho Cent. R. Co., 54 Fed. 2d 575; Southern Ry. Co. v. U.S., 222 U.S. 20, 32 Sup. Ct. 2, 56, L. Ed. 72; St. Louis C.R. Co. v. Seale, supra.
Some of these cases are very illuminative of the case at bar particularly the latter one. The burden of showing that the plaintiff was engaged in interstate commerce at the time of the accident is not proven by a mere showing that the train carried cars destined to different states. Neither is the fact that the train had been broken up and supper had intervened and only two cars were to be placed at the time of the accident conclusive proof that at the time of the accident the plaintiff was engaged in intrastate commerce. If the Perry mixed train carried cars destined to points outside the State and the plaintiff was injured while he was engaged as a switchman breaking it up and placing the cars in their proper place to go on their journey he was engaged in interstate commerce but there was nothing in the declaration warranting the introduction of evidence on these points.
There being nothing in the declaration to indicate that the plaintiff relied on the Federal statutes all evidence with reference to interstate commerce was irrelevant and should have been excluded. This being the case, it necessarily follows that the affirmative charge for a directed verdict for the plaintiff based on this evidence was error.
The contention that the grab iron in question was not within the requirements of the Federal Safety Appliance *Page 494 Act is without merit. This contention appears based on the fact that it was attached in a perpendicular position to the side of the steps to the vestibule of the car. The underlying purpose of the act was to safeguard the life and welfare of the employees and so long as required for that purpose its position and location on the railroad's instrumentalities is not a matter of importance.
The concluding question essential to discuss is whether or not the alleged vice in the verdict rendered was such that it could be corrected by remittitur.
This court has repeatedly entered remittiturs to correct excessive verdicts but such procedure is warranted only in cases where there is a clear showing of misguided judgment in reaching the verdict or where the proper elements that control the making of the verdict are not shown to have been present. If it is shown that the verdict was induced by prejudice, passion, favoritism, or other factors that should not influence its making, it then becomes a nullity and there is no basis on which it can be corrected by the trial court. To preserve its integrity, the verdict must be that of the jury and not that of the Court.
The ad damnum clause in the declaration claimed $50,000 damages; the jury returned a verdict for that amount. The trial judge on motion for new trial reduced it to $15,000, less than one third of the amount allowed by the jury. This would seem to show conclusively that it was influenced by improper considerations, that it was shocking to the judicial conscience, that it was a nullity in the first instance, and as corrected was the verdict of the Court, and in no sense that of the jury.
It is accordingly reversed with directions to reform the pleadings and order a new trial unless the plaintiff elects to rely on State law. *Page 495
Reversed with directions.
ELLIS, C.J., and WHITFIELD, TERRELL, BROWN, BUFORD and CHAPMAN, J.J., concur.
ON REHEARING