Carter v. Florida Power & Light Co.
Decision Date | 23 May 1939 |
Parties | CARTER v. FLORIDA POWER & LIGHT CO. |
Court | Florida Supreme Court |
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 Ray M. Watson and Roger Edward Davis, both of Miami, for plaintiff in error.
McKay Dixon & DeJarnette, of Miami, for defendant in error.
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:
On cross-examination plaintiff testified as follows:
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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.
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 Fla. 81, 59 So. 861; American Mercantile Co. v. Circular advertising Co., 71 Fla. 522, 71 So. 607; Carson, 73 Fla. 504, 74 So. 509; Greenblatt 74 Fla. 501, 77 So. 277; Standard Accident Insurance Co. v. Commercial Bank & Trust Co., 93 Fla. 903, 112 So. 615; Bolles v. Carson, 76 Fla. 504, 74 So. 509; Greenblatt v. J. R. Bissell Dry Goods Co., 85 Fla. 83, 95 So. 302; Miller v. Chase & Co., 88 Fla. 500, 102 So. 553; Cameron & Barkley Co. v. Law-Engle Co., 98 Fla. 920, 124 So. 814.
A party moving for a directed verdict admits facts stated in the evidence adduced and every conclusion favorable to his adversary fairly and reasonably inferable therefrom. E. E. Alley Co. v. Ball, 102 Fla. 1034, 136 So. 704; Briggs v. Mann, 95 Fla. 31, 116 So. 2; Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 So. 521; Wolfe v. City of Miami, 103 Fla. 774, 134 So. 539, 137 So. 892; Stevens v. Tampa Electric Co., 81 Fla. 512, 88 So. 303; Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975, L.R.A.1917E, 715; Commercial Credit Co. v. Parker, 101 Fla. 928, 132 So. 640; Aspinwall v. Gleason, 97 Fla. 869, 122 So. 270; Wager v. East Coast Hospital Association, 105 Fla. 547, 141 So. 743; Gravette v. Turner, 77 Fla. 311, 81 So. 476; Haile v. Mason Hotel & Investment Co., 71 Fla. 469, 71 So. 540; Gunn v. City of Jacksonville, 67 Fla. 40, 64 So. 435; Wilson- Otwell & Cone v. Ritch, 93 Fla. 698, 112 So. 547; Alhambra Groves v. Cody, 99 Fla. 448, 126 So. 749; W. B. Harbeson Lumber Co. v. Cosson, 116 Fla. 495, 156 So. 482; Florida Motor Lines v. Bradley, supra; King v. Weis-Patterson Lumber Co., supra; Russell v. Atlantic Coast Line R. Co., 129 Fla. 535, 176 So. 778; Duval Laundry Co. v. Reif, 130 Fla. 276, 177 So. 726; Hastings v. Taylor, 130 Fla. 249, 177 So. 621; New England Mutual Life Insurance Co. v. Huckins, 127 Fla. 540, 173 So. 696; Talley v. McCain, 128 Fla. 418, 174 So. 841.
In the light of the above principles the Court has taken the following statement of facts from the testimony of plaintiff himself:
Plaintiff, a man of 65 years of age, was traveling in an easterly direction on Northwest Eleventh Street in Miami, Florida, on a rainy night. As he approached the intersection of Eleventh Street and First Avenue he observed two cars approaching, one of them a truck and the other the car involved in this accident. The car of defendant was traveling at an approximate speed of thirty miles per hour. Plaintiff permitted the first car to pass while he was standing on the corner and then stepped into the street and started across, at all times watching the defendant's car as it approached the crossing. Plaintiff reached the middle of the street and, still watching the car approach him, instead of standing in the middle of the street where he would have been safe, he continued to cross, walking directly into the path of the motor vehicle. His testimony was that he was walking 'natural', 'hurrying a little fast'.
In Stevens v. Tampa Electric Co., 81 Fla. 512, 88 So. 303, 306, this court said:
'In determining whether the trial court committed reversible error in directing a verdict for the defendant on the evidence adduced by both parties, the fair inferences to be drawn from all the evidence in favor of the plaintiff should be considered; but if, after doing this, the appellate court is in doubt as to whether there was substantial evidence to afford a sufficient legal predicate for a verdict for the plaintiff, the trial court will not be held in error for directing a verdict for the defendant, where the trial court saw and heard the witnesses testify, and no rule of law has been violated.
'The presumptions are in favor of the ruling made by the court, and the burden is on the plaintiff in error to clearly show from the evidence that the court committed the error assigned.
Judgments for defendants rendered upon verdicts that were directed by the court were affirmed in Wade v. Louisville & N. R Co....
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