Babcock v. Flowers

Decision Date26 July 1940
Citation198 So. 326,144 Fla. 479
PartiesBABCOCK v. FLOWERS.
CourtFlorida Supreme Court

Adhered to As Corrected on Rehearing Oct. 15, 1940.

En Banc.

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by W. C. Flowers against F. L. Babcock to recover damages for personal injuries. To review a judgment in favor of the plaintiff, the defendant brings error.

Judgment reversed.

CHAPMAN and THOMAS, JJ., dissenting.

COUNSEL

Askew & Kiernan, of St. Petersburg, for plaintiff in error.

A Pickens Coles, John R. Parkhill, and Manuel Garcia, all of Tampa, for defendant in error.

OPINION

BUFORD Justice.

The writ of error brings for review judgment in favor of plaintiff in an action for damages resulting from personal injuries.

Plaintiff as agent for another, had sold defendant a truck and trailer to be delivered to plaintiff (the truck in one City and the trailer in another) at points far north of the State of Florida, with the understanding that plaintiff would go with defendant to points of delivery and assist in driving the truck with trailer to Tampa, Florida.

The trailer had constructed in the front end thereof a sleeping compartment. The compartment extended over the rear left dual wheels of the truck both forward and to the side, so that one leaving the compartment would be protected from the wheels provided one so alighting while the conveyance was in motion did not leave the platform in a position so as to alight in front of the wheels. As near as we can ascertain from the record, the platform was about 4 feet from the ground. The entrance to the compartment was some 22 or 24 inches square which made it most convenient and practical for one to crawl into the compartment head-first and to slide out feet-first.

The parties were engaged in the enterprise of so transporting the truck and trailer along the highway some distance north of Starke, Florida, in Bradford County, at a late hour of a dark night when the complained of incident occurred. The plan which was agreed upon and adopted by the two men was that they would travel day and night. One would drive a certain number of hours and then the other would drive for a like number of hours. The one not driving could enter the compartment, supra, and sleep during his off period. It was necessary to stop the equipment to make the change of position from truck to trailer.

Defendant was taking his turn driving and plaintiff was in the compartment sleeping when a lurch of the equipment (caused by defendant being required to almost quit the road to avoid collision with another truck) awoke plaintiff. He stuck his head out of the compartment door and made inquiry and learned the cause of the lurch and also that defendant intended to over-take the offending truck, pass it and try to block it to ascertain the identity of the driver and also that it was about time for him to take his turn at driving. He dressed, smoked a cigarette. The truck slowed down and he thought it had come to a stop at which time he swung himself through the compartment feet-first with his back to the floor by grasping a bar affixed to the inside of the compartment above the top line of the door. As plaintiff thus made his exit from the compartment, in some way which is unexplained, he swung his body from that part of the platform extending over the front of the truck wheels. He was struck in the back by the edge of the platform and fell forward face-down, and the truck wheels, still slowly rolling, crushed his leg and the lower part of his body, causing him great and permanent injury.

It is apparent from the record (testimony and photographs) that unless one so emerging from the compartment turned his feet, legs and body toward the front end of the truck he would naturally land in the road beyond the left rear dual wheels of the truck and would in nowise be in the path of the wheels and would be out of the line of danger.

It can serve no useful purpose to discuss any questions presented, except the challenge to the sufficiency of the evidence and the admitting of certain prejudicial and illegal evidence.

Defendant was justified in assuming that plaintiff would alight in the manner least dangerous to himself. The record shows that defendant did not know that plaintiff was in the act of alighting from the trailer at the moment. Plaintiff testified that he could not see objects outside the trailer and he concluded from the lack of sensation of movement that the truck had been brought to a stop but the defendant testified positively that the truck had not been brought to a full stop until he heard plaintiff call to him to back up as he was being crushed under the wheel. Plaintiff was in a closed compartment and therefore the physical sensation as to whether or not the vehicle was moving was not a dependable guide because human experience teaches all that under such conditions the sensation is apt to be misleading. The clear preponderance of the evidence shows that the defendant was not guilty of any negligence in the handling of the truck and the uncontradicted evidence shows that defendant did not know, and had no reason to believe, that plaintiff would alight from the trailer in such a way as to be in front of the truck wheels. Therefore, actionable negligence is not imputed. See Woodbury v. Tampa Water Works, 57 Fla. 243, 49 So. 556, 21 L.R.A.,N.S., 1034.

In a case like this there is no presumption of negligence. Mathers v. Botsford, 82 Fla. 497, 90 So. 375. In such case the burden is on plaintiff to prove specific act or acts of negligence and that such acts are the proximate cause of the injury. The plaintiff failed to meet this burden. In fact, we are unable to find any evidence in the record which would establish any act of negligence on the part of defendant which resulted in the injury complained of. Verdicts cannot be based on a mere probability or guess. They must rest upon evidence which can be pointed to in the record as constituting a reasonable foundation.

The record shows that immediately after the accident, while plaintiff was being taken to the hospital, plaintiff told defendant that he (defendant) was in no way responsible for the accident.

During the progress of the trial the following occurred (plaintiff testifying):

'A. Mr. Hunt came in and Mr. Hunt--they asked how I was feeling and Mr. Hunt tossed this check over there and said here is a Christmas present to cheer you up and make you feel better.
'Q. What was the check? A. It was for $150.00 for this commission for the sale to Mr. Babcock, it was part of it, and Mr. Babcock told me I did not have anything to do but concentrate on getting well, that I did not have anything to worry about, that all of the arrangements at the hospital had been taken care of and would continue to be taken care of.
'Q. That is the substance of what he said? A. Yes sir, that is the substance of what he said that I had nothing to do but concentrate on getting well and get my mind off the worries pertaining to the hospital.
'Q. Did you know at the time that he made that statement that he had already paid $50.00 to the hospital? A. Yes, sir, I did. In fact he had told me that he had.
'Q. Now, on another occasion after you were injured----
'By Mr. Askew: Now, if your Honor please, I move to strike from the record the testimony of the witness if it is sought to be used as a basis for recovery that subsequent to the alleged injury Babcock told the plaintiff not to worry that the hospital expenses would be taken care of upon the ground that this is an action in tort and no recovery can be had upon such a statement except in a suit on a
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11 cases
  • Ephrem v. Phillips, A-10
    • United States
    • Florida District Court of Appeals
    • 22 Octubre 1957
    ...257; Devine v. Brooklyn Heights R. Co., 131 App.Div. 142, 115 N.Y.S. 263.5 Golden v. Morris, Fla.1951, 55 So.2d 714; Babcock v. Flowers, 144 Fla. 479, 198 So. 326.6 People v. Dunbar Contracting Company, 215 N.Y. 416, 109 N.E. 554.7 Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214.8......
  • Wheeler v. Yellow Cab Co. of Orlando
    • United States
    • Florida Supreme Court
    • 21 Julio 1953
    ...has not been established that the jury was motivated by prejudice, passion, mistake or any other improper cause.' Also, Babcock v. Flowers, 144 Fla. 479, 198 So. 326; Golden v. Morris, Fla., 55 So.2d 714; Nelson v. McMillan, 151 Fla. 847, 10 So.2d 565. Also Geffrey v. Langston Construction ......
  • DEPT. OF HIGHWAY SAFETY AND MOTOR VEHICLES v. Trimble, 1D01-2425.
    • United States
    • Florida District Court of Appeals
    • 8 Abril 2002
    ...reached. See Jacksonville Coach Co. v. Early, 78 So.2d 369 (Fla.1955); Golden v. Morris, 55 So.2d 714 (Fla.1951); Babcock v. Flowers, 144 Fla. 479, 198 So. 326 (1940). As in Hall, we cannot say that the circuit court in the instant case misapplied the above law in determining that the docum......
  • Lingard v. Kiraly
    • United States
    • Florida District Court of Appeals
    • 16 Abril 1959
    ...some manner. The plaintiff must be required to prove his case and a jury verdict cannot remedy his failure to do so. See Babcock v. Flowers, 144 Fla. 479, 198 So. 326; Allen v. Powell, 152 Fla. 443, 12 So.2d 378; Golden v. Morris, Fla.1951, 55 So.2d In seeking to hold the defendant liable f......
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