Baston v. Shelton

• Decision Date: 07 May 1943
• Citation: 13 So.2d 453,152 Fla. 879
• Parties: BASTON v. SHELTON.
• Court: Florida Supreme Court

13 So.2d 453

152 Fla. 879

BASTON v. SHELTON.

Florida Supreme Court

May 7, 1943

Rehearing Denied June 4, 1943.

Appeal from Circuit Court, Dade County; Arthur Gomez Judge.

McKay Dixon & DeJarnette, of Miami, for appellant.

Wiseheart & Wiseheart, E. F. P. Brigham, and L. J. Cushman, all of Miami, for appellee.

CHAPMAN, Justice.

The plaintiff below, Peggy Shelton, about 3:00 A. M. on June 20, 1940, when walking from the west to the east across the intersection of 18th Street and Northwest 7th Avenue in the City of Miami, was struck by a Dodge truck driven by Lamar Carroll, 18 years of age, an employee of the defendant engaged in the delivery of milk. Plaintiff's declaration consisted of four counts, and alleged that the proximate cause of her injuries, being both serious and permanent, was the carelessness and negligence of defendant's employee in the operation of the milk truck at the time and place plaintiff was injured. Pleas of not guilty and contributory negligence were filed and the parties adduced evidence before a jury in support of the issues made, resulting in a verdict and judgment for the plaintiff below. An appeal therefrom has been perfected to this Court.

Seven questions are posed by counsel for appellant for adjudication by this Court appearing on the record. Posed questions 1, 5, 6, and 7 challenge the legal accuracy of designated instructions to the jury as given by the trial court; the 3rd goes to the ruling of the trial court in excluding from the consideration of the jury designated testimony; the 4th involves the admission into evidence by the plaintiff for the consideration of the jury of described photographs; while the 2nd is to the effect that the plaintiff is barred from recovery as a matter of law because of her own contributory negligence.

It is contended that the definition of contributory negligence as given by the trial court was erroneous and is, viz.:

'Contributory negligence is the failure of the person injured by the negligence of another, to use such ordinary care and prudence in the conduct of himself or herself, as would likely or probably occur in the ordinary course of events.'

The above definition, no doubt, could be improved upon, but it has not been made to appear that it is clearly erroneous. See Shayne v. Saunders, 129 Fla. 355, 176 So. 495. In passing upon a single instruction, such instruction must be considered in the light of all other instructions given bearing upon the same subject and if, when so considered, the law appears to have been fairly presented to the jury, an assignment based on the instruction or charge must fail. See Greiper v. Coburn, 139 Fla. 293, 190 So. 902; Haddock v. State, 141 Fla. 132, 192 So. 802.

The basis of questions 5, 6 and 7 are requested instructions refused by the trial court and are, viz.:

'(9) The Court erred in refusing to give in charge to the jury the following defendant's requested instruction: 'No. 1. I charge you, gentlemen of the jury, that the basis of this case is the alleged negligence of the operator of the defendant's truck. If he was operating his truck in a careful and prudent manner, then I charge you that he has not been guilty of negligence and that the plaintiff cannot recover.'

'(10) The Court erred in refusing to give in charge to the jury the following defendant's requested instruction:

"No. 2. I charge you, gentlemen of the jury, that the plaintiff owed to herself the duty of exercising reasonable care for her own safety, and in that regard it was her duty to look and see whether or not there was traffic when she crossed the street. If you find from the evidence that she failed to look or that she looked and failed to see approaching traffic, and that her carelessness in that respect was the cause of the accident, then she is not entitled to recover and your verdict must be for the defendant.'

'(11) The Court erred in refusing to give in charge to the jury the following defendant's requested instruction:

"No. 3. I charge you, gentlemen of the jury, that one of the defenses filed in this case by the defendant was that the plaintiff was guilty of some negligence which proximately helped to produce or bring about the accident and resulting injuries. If you find from the evidence that the plaintiff proximately contributed in any manner to the bringing about of the accident, then she cannot recover and your verdict must be for the defendant."

The charges as given by the trial court sua sponte applicable to the several points are a complete answer to this contention and are viz.:

'I charge you at the request of the defendant, that if you find from the evidence that both the driver of defendant's truck, and the plaintiff, were guilty of negligence, and that the negligence of each helped to produce or bring about the accident, then the plaintiff cannot recover; where both parties to a collision are guilty of negligence, and the negligence of each helps to bring about the collision, then the law leaves them where it finds them; under such circumstances neither is entitled to recover from the other.'

'Actionable negligence is any injury to another by reason of the failure of a person to use such ordinary care and prudence to avoid injury to such other person, when it is reasonably certain that the failure to use such ordinary care and prudence will likely or probably cause injury to another in the ordinary course of events.'

'By ordinary care, the law means such a degree of care under the circumstances, as in the situation in which the parties were placed, so far as it may be shown by the evidence, as an ordinarily prudent person would exercise under the circumstances and in the same situation, for one of his age, capacity and experience.

'To constitute actionable negligence there must be not only casual connection between the negligence complained of and the injury suffered, but the connection must be by natural and unbroken sequence without intervening efficient cause, so that but for the negligence of the defendant, the injury would not have occurred. It must not only be a cause, but it must be the proximate cause; proximate cause and efficient cause, from which the injury follows in unbroken sequence without any intervening cause to breach the continuity.

'You are charged here that an unavoidable accident is a casualty which occurs without negligence of either party, and when all means which common prudence suggests have been used to prevent it. Therefore if you find from the evidence that the plaintiff received the alleged injuries, if any, by reason of an unavoidable accident brought about as the direct, proximate result of unavoidable circumstances as here defined by the court, you will find for the defendant.'

A single instruction is not required to contain all the law relating to the subject treated, and, in determining whether challenged instructions are proper or improper, the entire instructions as given must be considered as an entirety. See Police & Firemen's Ins. Ass'n v. Hines, 134 Fla. 298, 183 So. 831. The charges to a jury should be considered as an entirety and not isolated portions. City of Hollywood v. Bair, 136 Fla. 100, 186 So. 818. Charges assigned as error, when considered in connection with all others given, and it appearing that no harmful error was committed and the point is covered fully by instructions given, assignments of error thereon are without merit. See Dykes v. Simkins, 143 Fla. 625, 197 So. 327.

The witness Sheehan, adduced by plaintiff, on cross examination was interrogated at considerable length as to the criminal record of one Eva Graham, who was shown to have left the party prior to the collision and did not see the impact, and neither was she called as a witness. The cross examination of the witness sought to develop the criminal record and a knowledge thereof on the part of the witness Sheehan. The witness testified that he had only a limited personal acquaintance with Eva Graham. Evidence in contradiction of this testimony was not adduced by the defendant. It was contended that the cross examination of the witness about his knowledge of the criminal record of Eva Graham affected Sheehan's credibility as a witness. The trial court sustained objections to questions tending to show that Eva Graham: (1) Spent 15 days in jail for vagrancy; (2) that she was an inmate of a bawdy house; (3) she visited saloons and drank whiskey; (4) was arrested on a charge of pick-pocketing; (5) that he had a right to show Eva Graham's reputation and character in order to determine whether or not the witness (Sheehan) was telling the truth. The plaintiff had never seen Mrs. Graham prior to this occasion. The evidence discloses that she was a member of the party only for a short time. Sheehan had seen her around his bar a few times. The criminal record of Eva Graham was irrelevant to the issues. It was within the province of the jury to believe or disbelieve the testimony of the witness and evidence of his moral depravity, if any, likewise could be weighed when his testimony was being considered along with the other testimony. We fail to find error in this assignment. See 70 C.J. 841, par. 1047; Wharton's Criminal Evidence, Vol. 3, 11th Ed., 2172-2178, par. 1301-1307.

Plaintiff's exhibits Nos. 9 and 11, being photographs of the scene of the collision, taken at night, were admitted in evidence by the trial court. Counsel for appellant contend that these are posed photographs and prejudicial to the defendant. Two Kentucky cases and one from the State of Maine are cited, and they hold that posed photographs may not be admitted. The photographs appear to have been taken at night and reflect the surrounding conditions where the collision occurred. This Court recognizes...