City of Miami v. Thigpen

• Decision Date: 17 November 1942
• Citation: 11 So.2d 300,151 Fla. 800
• Parties: CITY OF MIAMI v. THIGPEN.
• Court: Florida Supreme Court

11 So.2d 300

151 Fla. 800

CITY OF MIAMI v. THIGPEN.

Florida Supreme Court

November 17, 1942

On Rehearing Jan. 4, 1943.

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

J. W Watson, Jr. and Murrell & Malone, all of Miami, for appellant.

A. C Franks and H. H. Eyles, both of Miami, for appellees.

ADAMS, Justice.

This case was before this Court once before. fore. See Thigpen v. City of Miami, 148 Fla. 304, 4 So.2d 365. There we reversed a judgment, directed for defendant at the close of plaintiff's case. The case came on for trial again and a verdict was returned by the jury in the amount of $12,500. The trial court denied a new trial on condition of plaintiff's entering a remittitur of $2,500. The remittitur was made and judgment was entered for $10,000.

One of the defendant's pleas was based on the favored traffic ordinance of the City of Miami which reads:

'Operation of Vehicles and Street Cars on Approach of Authorized Emergency Vehicles. Upon the approach of an authorized emergency vehicle, when the driver is giving audible signal by siren exhaust whistle, or bell, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the righthand edge or curb of the street, unless traveling upon a one-way street, clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a Police officer.'

Defendant insists it did not get the benefit of this ordinance.

The trial court charged the jury on this ordinance as follows:

'The Court charges you that the defendant has filed a plea to the effect that the City of Miami has enacted an accident ordinance regulating traffic in the City of Miami, and that under that ordinance all emergency vehicles such as fire fighting equipment, have the right of way even as against a red light; and if the defendant has proven that the City has such a regulation, then it would not be negligence on the part of the drivers of the fire fighting equipment motor vehicles to drive through a red light, provided in driving through such red light the driver of the vehicle exercised reasonable care to avoid injury to others lawfully using the street.'

The effect of this ordinance is to remove the prima facie of negligence by the emergency vehicle when so used in violation of the state speed law. It does not however relieve the defendant from the duty to exercise due care even while acting in an emergency. Whether due care was exercised was a question of fact for the jury, subject however to judicial review. It is therefore proper for us to determine, as it was proper for the trial judge to determine, whether there was substantial evidence of neglect to use due care by the truck driver which caused the injury. It is not enough to say as appellee, that this was settled by the first appeal. There we did not have before us the above ordinance and defendant's evidence. We do not take judicial notice of municipal ordinances. The hook and ladder truck here involved was equipped with only two wheel brakes. Considering the distance the truck traveled after the brakes were applied and the damage done to the car of appellee, together with all the evidence, we are satisfied that there was substantial evidence upon which the jury might have said that the truck was operated negligently and that such negligence was the proximate cause of the injury.

The question of contributory negligence was discussed on the former appeal.

This brings us to the final question and that is the amount of the verdict. The...