Anchor Hocking Glass Corp. v. Allen

• Decision Date: 12 March 1964
• Docket Number: No. E-322,E-322
• Citation: 161 So.2d 853
• Parties: ANCHOR HOCKING GLASS CORPORATION, Lamar Bruce Bragg, Appellants, v. Mae Bell ALLEN, Appellee.
• Court: Florida District Court of Appeals

Page 853

161 So.2d 853

ANCHOR HOCKING GLASS CORPORATION, Lamar Bruce Bragg, Appellants, v. Mae Bell ALLEN, Appellee.

No. E-322.

District Court of Appeal of Florida, First District.

March 12, 1964.

Rehearing Denied April 7, 1964.

H. Franklin Perritt, Jr., of Marks, Gray, Yates, Conroy & Gibbs, and Marion R. Shepard, of Mathews, Osborne & Ehrlich, Jacksonville, for appellants.

Larkin, Lewis & Decker and Barnes & Slater, Jacksonville, for appellee.

WIGGINTON, Judge.

Appellants Anchor Hocking Glass Corporation and Lamar Bruce Bragg have appealed a final judgment based upon a jury verdict awarding damages to appellee Mae Bell Allen for the wrongful death of her husband caused by the negligence of the appellants. Anchor Hocking questions the sufficiency of the evidence to support the verdict which finds it guilty of negligence, while appellant Bragg questions the sufficiency of the evidence to support the verdict which finds that appellee was the lawful wife of the decedent at the time of the latter's wrongful death, and therefore entitled to bring this action.

It is the theory of plaintiff's case that at the time her husband was struck and killed by the motor vehicle owned by Anchor Hocking, the braking systems on the vehicle were defective and that this, coupled with the negligent operation of the vehicle by defendant Bragg with the implied consent of Anchor Hocking, proximately caused the injuries which resulted in her husband's death.

We shall first direct our attention to the grounds of the appeal urged by Anchor Hocking as cause for reversal of the judgment appealed. It contends that no evidence was adduced at the trial sufficient to establish any act of negligence on its part, but if such negligence was established, then the evidence affirmatively reveals that as a matter of law such negligence was not the proximate cause of the decedent's death.

Anchor Hocking's motion for a directed verdict at the conclusion of plaintiff's evidence and at the close of all the evidence was denied, as were its motions for judgment after verdict in accordance with its motion for directed verdict, and for a new trial.

At the outset, it must be noted that the evidence adduced by the several parties respecting the issues of negligence and proximate cause was in sharp conflict. Under the settled law of this state, all conflicts in the evidence have been resolved by the jury through the rendition of its verdict, which action has been approved by the trial judge in denying appellant's motion for a new trial. For these reasons the judgment comes to this Court with a presumption of correctness, and the burden rests upon appellants to clearly demonstrate harmful error. In considering the question of whether the evidence is sufficient to support the verdict and judgment, it is basic that all evidence touching on the issues involved in the case, and all reasonable inferences which may lawfully be drawn therefrom, must be considered in a light most favorable to the prevailing party. It is with these time honored principles in mind that we approach our task of determining whether appellants have carried the burden of clearly demonstrating error.

From the record we find the following evidence which the jury had a right to believe and on which it based its verdict.

On and before the critical date involved in this case Maxwell House Coffee Company maintained a plant in the City of Jacksonville. The structure housing the plant is surrounded by a paved area, all of which is enclosed with a fence having but one gate leading from the city street into the plant area. During working hours the paved area around the plant is normally congested with trucks and other vehicles entering and leaving the plant yard in the transaction of business with Maxwell House. The paved area adjacent to the entrance gate slopes downward to the loading platform of the plant, which platform is used for loading and unloading shipments consigned to and from the Maxwell House plant.

On and prior to the date in question Anchor Hocking Glass Corporation maintained its plant six miles distant from that of Maxwell House and, among other things, was engaged in the business of supplying Maxwell House with glass jars. The demand for Anchor Hocking's product was so consistently heavy that its tractor-trailer motor units operated daily on a shuttle basis between the two plants. Two spaces at the loading platform at the Maxwell House plant were assigned to Anchor Hocking for its use in unloading the glass jars delivered by it. The remaining spaces were utilized by other suppliers and concerns with whom Maxwell House transacted business. Anchor Hocking's method of operation included the employment of a separate crew which was permanently stationed at the Maxwell House plant for the purpose of unloading the trailers of glass jars delivered to the plant. As each Anchor Hocking trailer was unloaded, it was promptly returned to the company's plant and its place at the loading platform immediately filled by another Anchor Hocking trailer.

On the day in question one of Anchor Hocking's tractor-trailer units operated by its driver, John W. Mullaly, arrived at the Maxwell House plant late in the afternoon with a load of glass jars. As this unit entered the gate to the plant yard Mullaly observed that the two spaces at the loading platform assigned to Anchor Hocking were occupied by other Anchor Hocking units which were in the process of being unloaded. Not being able at that moment to park his trailer at the loading platform, Mullaly stopped his unit partially inside of and completely blocking the gate leading into and out of the Maxwell House yard. He locked the trailer air brakes, set the mechanical hand brake and placed the truck in reverse gear. He then got out of the truck, leaving it unattended with the ignition keys in the switch, and proceeded to the loading platform where he visited among his friends. It was there that he located his brother, the driver of another truck being unloaded at the platform, with whom he proceeded to sit and visit. The evidence reveals that Mullaly had absented himself from his tractor-trailer unit for a period of approximately thirty minutes before the tragedy involved in this case occurred.

On and prior to the day in question appellant Lamar Bruce Bragg was employed by Henley & Beckwith, Inc., of Jacksonville, and was engaged in installing a vacuum pipeline in the Maxwell House plant. He completed his day's work and proceeded to leave the Maxwell House yard in his one ton pickup truck, accompanied by his helper. As Bragg left the area where his truck had been parked, he found the travel lane leading to the exit gate blocked by a truck owned by a party not involved in this proceeding. The driver of the improperly parked truck was located and he moved his vehicle in order to let Bragg pass. The delay caused by this incident evidently upset Bragg and as he proceeded toward the exit gate, he came upon the parked Anchor Hocking tractor-trailer unit which completely blocked the only exit out of the plant yard. Becoming angered at the second delay caused by an improperly parked vehicle, Bragg profanely exclaimed that since the driver of the unit was not available, he would move it himself. The ownership of the tractor-trailer unit by Anchor Hocking was clearly evident by the company name appearing on the side of the trailer. As he got out of his own truck preparatory to moving the Anchor Hocking unit, Bragg recognized one Anderson whom he knew to be an Anchor Hocking employee and who at that time was at the loading platform unloading another Anchor Hocking trailer. Bragg asked Anderson to move the Anchor Hocking tractor-trailer unit out of the way so Bragg could leave the yard, and Anderson replied, 'All you have to do is just let it roll down.' Bragg then entered the cab of the tractor, cranked the motor, and put it in gear in an attempt to move the unit forward. Instead of moving forward the tractor bounced up and down whereupon Anderson shouted to Bragg, 'You don't have to do that, cut the motor off. Just push it back in gear.' After Bragg switched off the ignition and stopped the motor, Anderson instructed him to push down the lever attached to the steering column and the truck would roll forward a sufficient distance to clear the exit gate. At that time some unidentified third party interjected that the lever should be pulled upward instead of pushed downward, and Anderson agreed. Bragg pulled the lever upward and the tractor-trailer unit began to move forward down the grandually sloping incline toward the loading platform located just fifteen to twenty yards away. As the rolling unit began to increase its momentum Bragg applied the foot brake and even though the pedal depressed to the floorboard the forward speed of the rolling vehicle was not impeded. Realizing that the foot brake did not work Bragg shouted, 'Look out, no brakes,' and immediately seized the emergency brake lever and brought it all the way back against the seat. This second braking system likewise failed to operate and the unit continued to roll forward. At that moment the deceased, Herbert Allen, an employee of a concern not involved in this proceeding, was standing beside a truck which was parked adjacent to the loading platform with his back toward the Anchor Hocking unit. Because of Bragg's inability to stop the Anchor Hocking unit, it continued to roll forward, striking Allen and crushing him between it and the truck parked at the platform.

It is reasonably clear from the evidence that although Bragg was accustomed to operating trucks of the small pickup type and had in the past operated larger tractor and trailer units, he had never operated a unit of the type owned by Anchor Hocking and involved in this case. From the testimony it is apparent that Bragg was not familiar with the Anchor Hocking tractor and was not qualified to operate it.

In this testimony...