Opinion
No. 59-384.
February 25, 1960.
An appeal from the Circuit Court for Dade County; Ray Pearson, Judge.
Nichols, Gaither, Green, Frates Beckham and Sam Daniels, Miami, for appellant.
Harold B. Wahl and Scott, McCarthy, Preston, Steel Gilleland and Dwight Sullivan, Miami, for appellees.
This cause appeared before this court upon a prior appeal. See Butler v. Smith, Fla.App. 1958, 104 So.2d 868. Upon the return of the cause to the trial court pursuant to our mandate, the plaintiff elected to stand exclusively upon his claim, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., that the railroad had no right to give the field test. The trial court entered judgment under authority of our prior opinion in this case. The plaintiff now appeals from this judgment. The only assignment of error presented is that the court erred in directing a verdict for the defendants. Appellant's brief recites "The sole purpose of this appeal is to obtain a record on which this court's prior decision in Butler v. Smith, Fla.App. 1958, 104 So.2d 868, can be reviewed by the Supreme Court of the United States."
The judgment of the trial court is affirmed upon the authority of Butler v. Smith, supra.
Affirmed.
HORTON, C.J., and PEARSON and CARROLL, CHAS., JJ., concur.