Allen v. Hooper
| Decision Date | 10 December 1936 |
| Citation | 171 So. 513,126 Fla. 458 |
| Parties | ALLEN v. HOOPER. |
| Court | Florida Supreme Court |
Rehearing Denied Jan. 7, 1937.
Error to Circuit Court, Brevard County; M. B. Smith, Judge.
Action by J. W. Hooper against L. P. Allen. To review a judgment for plaintiff, defendant brings error.
Affirmed.
George P. Garrett, of Orlando, for plaintiff in error.
Horrell & Horrell, of Orlando, and Crofton & Wilson, of Titusville for defendant in error.
The writ of error brings for review judgment in favor of the plaintiff for damage resulting from injuries to a truck, the property of plaintiff, occasioned by the negligent act of the defendant's driver of another truck.
Plaintiff in error has presented 24 questions covering 13 pages. The first question challenges the action of the court in denying defendant's motion for a directed verdict at the conclusion of the plaintiff's case upon the hypothesis that the defendant proved that the plaintiff, through his agent and servant, was guilty of contributory negligence. The defendant had pleaded contributory negligence. The plaintiff in error contends that because the truck belonging to the defendant in error, plaintiff in the lower court, was parked so as to cover more of the pavement of the roadway than is permissible under section 3 of chapter 10186, acts of 1925 being section 1320, C.G.L., and because plaintiff's truck was not displaying lights as required by section 1021, R.G.S., section 1294, C.G.L., that the plaintiff was as a matter of law guilty of contributory negligence. The failure to comply with these provisions is not necessarily negligence. A violation of either of those provisions may be entirely justified by the circumstances which surround a party at the time of the violation. See Wilson v. King et al., 116 Fla. 752, 156 So. 694; Austin v. State, 101 Fla. 990, 132 So. 491.
In the case at bar, the record shows that plaintiff's truck was being driven northward south of St. Augustine, Fla., loaded with citrus fruit. It was a truck equipped with dual wheels on the rear, there being two wheels on each end of the of the rear axle. As the truck was crossing a bridge, one tire on the right rear blew out and before the driver could get away from the bridge the other tire on the right rear blew out. The record indicates that he was then on the fill which constituted an approach to the bridge. He drove off the pavement as far as he could drive and stopped to repair the tires. The right wheels of the truck were out on the shoulders of the road as far as he could safely go. The left wheels were on the highway. His truck was equipped with all lights required and, in addition thereto, with what is known as clearance lights. This is a system of small lights of different colors which show the outline of the cab or body of the truck, or automobile, and are used very generally for the purpose of indicating to passing vehicles the true outline of the truck, which might not be observed by the use of ordinary lights. A number of people passed the truck while it was parked and amongst those who passed was the driver of another truck who requested the driver of plaintiff's truck to turn off his headlights because, although he had turned them dim, the truck was set at such an angle because of the sloping grade of the road, that they blinded approaching drivers. The bright lights were turned off, but the clearance lights remained on and any one using ordinary care could have seen them. Defendant's truck approached while another truck belonging to the defendant was just moving away from beside the truck which was parked on the shoulder of the road. These two trucks practically blocked the road, but the approaching truck was being driven at a high rate of speed, and when the driver thereof observed that there were two trucks practically blocking the road, he could not control and stop the truck which he was driving before it ran into and injured plaintiff's truck.
The jury, under proper instructions, returned a verdict in favor of the plaintiff, and if the jury observed the instructions given by the trial court, it thereby determined that the plaintiff through his servant and agent, the driver of his truck, was not guilty of contributory negligence. The evidence in the record warrants that conclusion.
The second question challenges the measure of damages applied and contends that the plaintiff was not entitled to recover the use value of his truck while it remained in the garage awaiting the arrival of parts for the repair thereof. We do not think the contention is tenable, it not being shown that plaintiff was responsible for the delay.
The third question challenges the action of the trial court in declining to allow the defendant to wait until after the plaintiff had put in his evidence to make an opening statement to the...
To continue reading
Request your trial
-
Florida Power & Light Co. v. Goldberg
...of surrounding circumstances and conditions which will eliminate the character of negligence from the transaction. Allen v. Hooper, 126 Fla. 458, 171 So. 513, 516 (1936). When it is shown that the traffic law has been violated, it is a question for the jury to determine from all the facts a......
-
Seaboard Air Line R. Co. v. Bailey
...from which negligence might be inferred. Grand Trunk Ry. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485. Compare Allen v. Hooper, 126 Fla. 458, 171 So. 513. The defendant objected to the ordinance as inapplicable and therefore irrelevant, because the railroad tracks in question did not r......
-
Standard Jury Instructions-Civil Cases
...violations which constitute negligence per se, see charge 4.9. See Baggett v. Davis, 124 Fla. 701, 169 So. 372 (1936); Allen v. Hooper, 126 Fla. 458, 171 So. 513 (1937); Clark v. Summer, 72 So.2d 375 [6: Revised Notes on the Use of Instruction on Interference With a Contract Not Terminable ......
-
Lapuyade v. Pacific Employers Ins. Co.
...negligence when such violation is the proximate cause of the injury.2 Sun Oil Co. v. Gregory, 5 Cir., 56 F.2d 108; Allen v. Hooper, 126 Fla. 458, 171 So. 513. Plaintiffs rely on the doctrine of last clear chance, or discovered peril, under which a negligent plaintiff may recover from a negl......