Carter v. Florida Power & Light Co.

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM.
Citation138 Fla. 220,189 So. 705
Decision Date23 May 1939
PartiesCARTER v. FLORIDA POWER & LIGHT CO.

189 So. 705

138 Fla. 220

CARTER
v.
FLORIDA POWER & LIGHT CO.

Florida Supreme Court, Division B.

May 23, 1939


Rehearing Denied June 22, 1939.

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Action by Nicholas Carter against the Florida Power & Light Company for injuries sustained when plaintiff, a pedestrian, was struck by defendant's truck. From judgment upon a directed verdict for defendant, plaintiff brings error.

Judgment affirmed.

COUNSEL [138 Fla. 221] Ray M. Watson and Roger Edward Davis, both of Miami, for plaintiff in error.

McKay, Dixon & DeJarnette, of Miami, for defendant in error.

OPINION

PER CURIAM.

Nicholas Carter brought an action for damages in the Circuit Court of Dade County against Florida Power and Light Company, in which the Circuit Judge directed a verdict for defendant at the conclusion of the testimony. Plaintiff seeks to reverse the final judgment on writ of error.

In his direct testimony plaintiff gave the following account of the accident:

'I got to the corner, and naturally everybody stops to look It was a drizzling rain. It would start to rain then stop raining and start up again. There was a car coming and it passed and I seen another car down by the next corner and I started to go across the road. By the time I got in 6 or 8 feet of the curb the lights come on me like that and I threw my hand up and hollered and it hit me. After that I was unconscious until I come out of the unconsciousness when they were hauling me down to the Deering Ward in the hospital, and I spoke to some of the boys in there.'
'Q. * * * can you estimate the speed from what you saw of the truck itself from the time you saw it until it ran into you? A. Over 30 miles an hour.'

On cross-examination plaintiff testified as follows:

'Q. Didn't you see it from the time you stepped off of the [138 Fla. 222] sidewalk into the street until the time you were struck by the truck? A. Yes.

'Q. When did you last see it before it hit you? A. Just as it hit me. * * *

'Q. You knew the truck was coming? A. Yes.

'Q. If you had stopped when you reached the middle of that street the truck would have passed on and you would not have been struck. Is that correct? A. Possibly so.

'Q. Not possibly so? A. Yes, sure it would.

'Q. When you reached the center of the street did you look again to see if the truck was still coming? A. Yes, I surely must have.

'Q. You must have? A. Yes, sir.

'Q. Well, did you? A. Yes, I think I did.

'Q. Do you remember whether you did? A. Well, pinning it right down I think I would say yes. [189 So. 706]

'Q. You looked and saw the truck still coming when you were in the middle of the street? A. Yes, sir; I thought I could beat it.

'Q. Thought you could beat it? A. Yes, a person naturally would.

'Q. But you couldn't beat it? A. I didn't beat it. * * *

'Q. Were you running any crossing the street? A. I don't know that I was running any when I was crossing the street, but I was running several times on the [138 Fla. 223] sidewalk when it was raining. I was running when it was raining, to get under an awning. * * *

'Q. How were you walking? A. Just walking natural, straight ahead.

'Q. You were not running? A. Not in the street. I was hurrying a little fast. I am not sure it was raining at the time, but it had been raining and stopped raining, then rained and stopped raining.'

The time of the accident was about eight o'clock in the evening. The testimony of the driver of defendant's truck and his companion that the lights were good and the windshield wiper was working is uncontradicted. However, there is a conflict in the evidence as to the speed of the truck--the driver and his companion testified they were going between ten and fifteen miles per hour, while plaintiff estimated the speed as thirty miles per hour.

In a civil action, if, after all the evidence of the parties 'shall have been submitted, it be apparent to the judge of the circuit court, or county court or criminal court or civil court of record that no sufficient evidence has been submitted upon which the jury could legally find a verdict for one party, the judge may direct the jury to find a verdict for the opposite party'. Section 4363, Compiled General Laws of 1927.

Under this statute, when in a trial by jury the evidence has all been submitted, a verdict should not be directed for the defendant unless it be apparent that no sufficient evidence has been submitted upon which the jury could legally find a verdict for the opposite party. Powell v. Jackson Grain Co., Fla., 184 So. 492; King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858; Stevens v. Tampa Electric Co., 81 Fla. 512, 88 So. 303; Florida Motor Lines v. Bradley, 121 Fla. 591, 164 So. 360.

[138 Fla. 224] Where the manifest weight and probative force of the evidence clearly requires a verdict for one party, and the evidence is legally insufficient to support a verdict for the opposite party in the particular issue within the meaning of the statute, the court will not be held in error for directing an appropriate verdict, no error of law or procedure intervening to make the directed verdict erroneous or improper. Tedder v. Fraleigh-Lines-Smith Co., 55 Fla. 496, 46 So. 419; Bell v. Niles, 61 Fla. 114, 55 So. 392; Investment Co. v. Trueman, 63 Fla. 184, 57 So. 663; Gordon v. Lowe, 64...

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10 practice notes
  • Baston v. Shelton
    • United States
    • United States State Supreme Court of Florida
    • May 7, 1943
    ...precluded from a recovery as disclosed by all the testimony appearing in the record. The case of Carter v. Florida Power & Light Co., 138 Fla. 220, 189 So. 705, is cited and relied upon to sustain this contention. It is settled law that the operator of a motor vehicle is required to exercis......
  • Coca-Cola Bottling Co. v. Clark, COCA-COLA
    • United States
    • Court of Appeal of Florida (US)
    • July 30, 1974
    ...Co. v. Reif, 130 Fla. 276, 177 So. 726; Fain v. Cartwright, Page 80 132 Fla. 855, 182 So. 302; Carter v. Florida Power & Light Co., 138 Fla. 220, 189 So. 705; Smith v. Burdines, Inc., 144 Fla. 500, 198 So. 223, 131 A.L.R. 115. But when there is an absence of all evidence to establish liabil......
  • GENERAL ACC. FIRE & LIFE ASSUR. CORP. v. Schero, No. 11764.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 19, 1947
    ...Duval Laundry Co. v. Reif, 130 Fla. 276, 177 So. 726; Fain v. Cartwright, 132 Fla. 855, 182 So. 302; Carter v. Florida Power & Light Co., 138 Fla. 220, 189 So. 705; Smith v. Burdines, Inc., 144 Fla. 500, 198 So. 223, 131 A.L.R. 115. But when there is an absence of all evidence to establish ......
  • Hughs v. Miami Coca Cola Bottling Co.
    • United States
    • United States State Supreme Court of Florida
    • December 5, 1944
    ...Duval Laundry Co. v. Reif, 130 Fla. 276, 177 So. 726; Fain v. Cartwright, 132 Fla. 855, 182 So. 302; Carter v. Florida Power & Light Co., 138 Fla. 220, 189 So. 705; Smith v. Burdines, Inc., 144 Fla. 500, 198 So. 223, 131 A.L.R. 115. But when there is an absence of all evidence to establish ......
  • Request a trial to view additional results
10 cases
  • Baston v. Shelton
    • United States
    • United States State Supreme Court of Florida
    • May 7, 1943
    ...precluded from a recovery as disclosed by all the testimony appearing in the record. The case of Carter v. Florida Power & Light Co., 138 Fla. 220, 189 So. 705, is cited and relied upon to sustain this contention. It is settled law that the operator of a motor vehicle is required to exercis......
  • Coca-Cola Bottling Co. v. Clark, COCA-COLA
    • United States
    • Court of Appeal of Florida (US)
    • July 30, 1974
    ...Co. v. Reif, 130 Fla. 276, 177 So. 726; Fain v. Cartwright, Page 80 132 Fla. 855, 182 So. 302; Carter v. Florida Power & Light Co., 138 Fla. 220, 189 So. 705; Smith v. Burdines, Inc., 144 Fla. 500, 198 So. 223, 131 A.L.R. 115. But when there is an absence of all evidence to establish liabil......
  • GENERAL ACC. FIRE & LIFE ASSUR. CORP. v. Schero, No. 11764.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 19, 1947
    ...Duval Laundry Co. v. Reif, 130 Fla. 276, 177 So. 726; Fain v. Cartwright, 132 Fla. 855, 182 So. 302; Carter v. Florida Power & Light Co., 138 Fla. 220, 189 So. 705; Smith v. Burdines, Inc., 144 Fla. 500, 198 So. 223, 131 A.L.R. 115. But when there is an absence of all evidence to establish ......
  • Hughs v. Miami Coca Cola Bottling Co.
    • United States
    • United States State Supreme Court of Florida
    • December 5, 1944
    ...Duval Laundry Co. v. Reif, 130 Fla. 276, 177 So. 726; Fain v. Cartwright, 132 Fla. 855, 182 So. 302; Carter v. Florida Power & Light Co., 138 Fla. 220, 189 So. 705; Smith v. Burdines, Inc., 144 Fla. 500, 198 So. 223, 131 A.L.R. 115. But when there is an absence of all evidence to establish ......
  • Request a trial to view additional results

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