Tampa Electric Co. v. Bazemore

• Citation: 96 So. 297,85 Fla. 164
• Parties: TAMPA ELECTRIC CO. v. BAZEMORE.
• Decision Date: 13 February 1923
• Court: United States State Supreme Court of Florida

96 So. 297

85 Fla. 164

TAMPA ELECTRIC CO. v. BAZEMORE.

Florida Supreme Court

February 13, 1923

Rehearing Denied March 9, 1923.

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by Kathryn Merle Bazemore, an infant, by Hoyt R. Bazemore her father and next friend, against the Tampa Electric Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Assignments of error, not argued in appellate court, considered abandoned. Assignments of error, which are not argued in the appellate court, will be considered as abandoned.

Doctrine of imputed negligence not recognized. The doctrine of imputed negligence does not obtain in this state.

Statutory presumption of negligence defined. In an action for damages for personal injuries inflicted by a street railroad company by the running of its cars, the fact of injury being established, the statute raises the presumption that the injury was the result of the company's negligence, and the burden is cast upon the company of overcoming that presumption by showing that its agents exercised all ordinary and reasonable care and diligence in running the car, such diligence and care being made to appear the statutory presumption ceases.

Statutory presumption of negligence as to child confirmed. Where a motorman, an employee of a street railroad company, in charge of a street car approaches a street crossing and observes an infant child approaching the railroad track, and there is ample distance between the moving car and the child, at the time it is observed by the motorman to be approaching the track, within which to bring the car to a standstill and avoid collision with the child, but such precaution is not taken by the motorman and a collision with the child results in which it sustains serious injury, the statutory presumption of negligence on the part of the company is confirmed.

Instruction that only question is whether defendant guilty of any negligence harmless in action for personal injuries, where no dispute as to injury and no negligence other than that alleged. An instruction that the only question for the jury to decide is whether the defendant was guilty of any negligence whatsoever is harmless, in a case where damages are sought for personal injuries against a railroad company when there is no dispute as to the fact of injury and the record discloses no character of negligence other than that which is alleged in the declaration.

Instruction to disregard question of negligence of parents of injured child held not erroneous. In an action to recover damages against a street railroad company for injury to an infant child, it is not error to instruct the jury to disregard any consideration of the question whether it was or was not careless or improper for the child's father or mother to permit it to be on the street under the circumstances existing at the time and place of the injury.

Erroneous instruction on negligence in running street car harmless, in view of testimony of motorman that he could have avoided accident. An erroneous instruction upon the question of negligence in a case for personal injuries, inflicted by the running of a street car, which charge prescribes an unreasonable measure of ordinary care to be observed by the company's employee in charge of the car, is harmless error, in view of the testimony of the motorman defendant's witness, that he saw the person injured before the accident, in danger and far enough away, so that the motorman could have avoided the accident by stopping the car.

$15,000 for injuries to child 2 1/2 years old, necessitating amputation of left arm at shoulder joint, held not excessive. In an action for damages for personal injuries, when the damages awarded by the jury do not appear to be unreasonable and outrageous and to suggest that the jury was influenced by passion, partiality, prejudice, or corruption, nor that the verdict is flagrantly outrageous and extravagant, it will not be disturbed as excessive.

Refusal of correct applicable instruction not reversible error, when instruction announcing same principle, in substance, given. A requested instruction announcing a correct principle of law applicable to the case should be given. Its refusal, however, will not be considered as reversible error, when an instruction in different phraseology announcing the same principle, in substance, is given.

Refusal of inapplicable instructions proper. Instructions requested, which are not applicable to the evidence, are properly refused.

Improper to interrogate juror upon voir dire concerning judgment upon merits of case, conditioned upon existence or nonexistence of immaterial or uncontrolling facts and erroneous instruction. It is not proper to interrogate a juror upon his voir dire concerning his judgment upon the merits of the controversy conditioned upon the existence or nonexistence of one or more immaterial or uncontrolling facts and an erroneous instruction from the court upon them.

COUNSEL

Knight, Thompson & Turner, of Tampa, for plaintiff in error.

McKay & Withers, of Tampa, for defendant in error.

OPINION

ELLIS J.

On the 24th day of April, 1920, the defendant in error, Kathryn M. Bazemore, a little girl about 2 1/2 years old, was run over by a street car owned and operated by the plaintiff in error in the city of Tampa, at or near the intersection of Franklin and Estelle streets.

The accident occurred about 7:30 o'clock p. m. It was not then dark, but the electric light at that corner was burning. When the street car was stopped it was discovered that the child was pinned under the car by a brake beam immediately behind the right front wheel. The right side of the car had to be raised from the track before the child could be removed. The right front wheel of the car had passed over her left arm, almost completely severing it near the shoulder joint. The arm was subsequently amputated by surgeons. Although the child was lying under the car between the tracks, her body pinned to the ground by a brake beam and her left arm almost severed at, or near, the shoulder when she was removed, there were no other bruises upon her body of such character as required medical or surgical attention.

In June, 1920, the child, by its next friend, her father, brought an action against the Tampa Electric Company for damages for personal injuries.

The declaration contains two counts. The first count alleges, as a basis for recovery, that the defendant failed to use 'reasonable care' in the operation of its car so as to avoid injuring the plaintiff, but on the contrary so 'negligently, carelessly, and improperly drove and operated' it that it was caused to collide with the plaintiff and run over her producing the injuries named. The second count alleges as a basis for recovery that the defendant failed to 'use all reasonable and proper care to provide, construct, maintain, and keep in proper working condition on said street cars such usual and customary safety appliances and devices as were commonly used in connection with street cars of like type' and 'did not use all reasonable care to provide proper brakes on said street car, and to keep the same in proper working condition, and to provide a proper fender or fenders on said street car, and to keep the same in proper working condition,' and that, as a proximate consequence of such negligence, the plaintiff was injured.

The word 'fender,' as used in this declaration, had reference to a contrivance sometimes called 'life guard,' which is placed, not in front of the car, but under it, and some distance behind its fore end and in front of the forward wheels.

The defendant pleaded, first, the general issue; second, that, as the car approached the place where the accident occurred, the child suddenly and unexpectedly came upon the track immediately in front of the car, and so close to it that the car could not, with the greatest amount of care, have been prevented from running upon and over the child; third, that the presence of the child in the street and upon the defendant's track in front of the approaching car was due to the negligence of the plaintiff's father in not providing a competent person to attend upon the child and guard it against dangers incident to the streets; fourth, that the father of the child did not exercise reasonable care to restrain the child from going upon the tracks of the defendant and into the place of danger.

Demurrers to the second, third, and fourth pleas were sustained, and a motion to strike them was granted, and the parties went to trial upon the general issue.

There was a verdict and judgment for $15,500 in favor of the plaintiff, and the defendant took a writ of error.

The assignments of error made upon the order sustaining the demurrer to the pleas and the motion to strike them are not argued, and are therefore considered to be abandoned. See Porter v. Parslow, 39 Fla. 50, 21 So. 574; Southern Express Co. v. Van Meter, 17 Fla. 783, 35 Am. Rep. 107; Lake v. Hancock, 29 Fla. 336, 11 So. 97; Caldwell v. People's Bank of Sanford, 73 Fla. 1165, 75 So. 848.

The last assignment of error is the first discussed by counsel for the plaintiff in error; it rests upon the denial of the motion for a new trial, and the ground of the motion discussed is that the verdict was not sustained by the evidence. The theory upon which the plaintiff sought to recover damages from the defendant for the injury sustained consisted of two propositions: One, expressed in the first count of the declaration, charged the defendant with negligent and careless driving and operation of the car; the other, expressed in the second count, charged the defendant with negligence in not providing...