Coast Cities Coaches, Inc. v. Donat

• Decision Date: 18 November 1958
• Docket Number: No. 58-13,58-13
• Citation: 106 So.2d 593
• Parties: COAST CITIES COACHES, Inc., a Florida corporation, and Walter Zajac, Appellants, v. Paul C. DONAT, Appellee.
• Court: Florida District Court of Appeals

Page 593

106 So.2d 593

COAST CITIES COACHES, Inc., a Florida corporation, and Walter Zajac, Appellants, v. Paul C. DONAT, Appellee.

No. 58-13.

District Court of Appeal of Florida, Third District.

Nov. 18, 1958.

Rehearing Denied Dec. 12, 1958.

Knight, Smith, Underwood & Peters, Miami, for appellants.

Prebish, DuVal & Foard, Miami, for appellee.

CARROLL, CHAS., Chief Judge.

The appellants, defendants below, appeal from a judgment entered on a jury verdict for the appellee-plaintiff Paul C. Donat, in an action brought by him for damages recoverable under section 768.03, Fla.Stat., F.S.A., for the wrongful death of his six year old minor child. ¹ The child was struck and killed by a passenger bus owned by the defendant corporation, in use as a school bus, and being driven by the individual defendant.

Defendants' motions for directed verdict, made at the close of plaintiff's case, and after all evidence was in, were denied. Motions filed by defendants after the verdict, for judgment in accordance with the motions for directed verdict and for new trial, also were denied. Thirty-five errors were assigned, and based on seventeen of them, the appellants here state three questions:

'I. Where the undisputed evidence shows that a small child suddenly went in front of a bus and was instantly struck by it, at the precise moment when the bus was just starting slowly forward from a stopped position, and where the driver of the bus was not award of the presence of the child, and where the child was so close to the front of the bus that it was impossible for the driver to have seen the child, with the driver sitting in his seat in an upringht position, would a jury be authorized to find the driver guilty of actionable negligence?

'II. Where there was no evidence, in the trial of an action by a father for the wrongful death of his 6 1/2 year old girl child, that either the father or the mother of the child endured more than the ordinary grief of normal parents, is a verdict in the amount of $45,000.00 in favor of the father authorized?

'III. Is it error for the jury to consider the father's mental incompetency, in an action by him for the wrongful death of his child, as an element of damages when making an award for the mental pain and suffering of the child's parents?'

The first question must be answered adversely to the contentions of appellants. The area of the accident was one in which children were to be expected. The bus driver saw this child following the bus. At the stop in question, a number of school children alighted from the bus. The child overtook the group, and passing among them went in front of the bus, and was within an arm's length of the bus when it started up. From his position in the bus the driver could not see the child in front of the bus. The driver did not see the child before the bus struck her, and he did not know, until pursuing children hailed him, that he had struck the child. Before starting up the driver gave no signal, such as by sounding the horn, and he did not get up out of his seat to look directly in front of the bus before proceeding. The question of his negligence was one for the jury.

In the similar case of Miami Paper Co. v. Johnston, Fla.1952, 58 So.2d 869, it was held that whether the driver was guilty of negligence was a question to be determined by the jury. In the Miami Paper Co. case the driver of a delivery truck stopped and made a delivery in an area where children were known to be numerous. After making a delivery, he returned to the truck and started out without first ascertaining if a child was in front of the truck, as in fact one was. In that case the Supreme Court said (58 So.2d at pages 870-871):

'* * * when the driver made his delivery he proceeded to the rear of the truck, looked down the righthand side and saw nothing. He then walked along the left side of the truck and saw nothing, he mounted the driver's seat but did not look in front of the truck. He started forward without blowing his horn. When he had proceeded from three to five feet he felt a thud. * * *'

'Under this state of facts, we think the question of negligence was properly submitted to the jury and whether or not the driver of the truck was negligent in not looking in front of the truck before he started was a jury question. He was on notice that many children lived and played about the trailer park, that it was a private enterprise and catered to families and that children were playing near when he parked the truck. It is a matter of common knowledge that small children are erratic and unpredictable, that they are liable to take off at any time and in any direction with no concern whatever for their own safety. The drivers of motor vehicles are charged with knowledge of their behavior and are expected to govern themselves accordingly when parking or driving about school grounds, recreation parks, residential communities, trailer parks and other places inhabited by or frequented by children. They are expected to anticipate children about such places and whether or not they exercise reasonable care in doing so is a question for the jury.

'The general rule supported by a wealth of authority is that one manipulating a motor vehicle on the highway, whether backing, starting, or proceeding ahead, must exercise reasonable care, circumstances being the guide as to what constitutes reasonable care. If he has reason to think that children may be near, reasonable caution requires that he be on the lookout for them. Gorzeman v. Artz, 13 Cal.App.2d 660, 57 P.2d 550; Jackson v. State Farm Mutual Automobile Insurance Co., La.App., 32 So.2d 52; Cunningham v. Sublett's Administrator, 306 Ky. 701, 208 S.W.2d 509; Frederiksen v. Costner, 99 Cal.App.2d 453, 221 P.2d 1008; Jacklich v. Starks, 338 Ill.App. 433, 87 N.E.2d 802; 60 C.J.S. Motor Vehicles § 396(d), p. 972.'

On the second question under which it is claimed that the $45,000 verdict in this case is excessive, appellant cited Kenan v. Black, 150 Fla. 208, 7 So.2d 462, in which a $15,000 verdict was reduced to $7,500 in a case involving wrongful death of an eleven year old girl, and City of Miami v. Thigpen, 151 Fla. 800, 11 So.2d 300, which involved the death of a child eleven months of age, and where the verdict of $12,500 was reduced by the trial court to $10,000, and further reduced by the Supreme Court to $8,000. In those cases the Supreme Court did not explain or give the reasons for the reduction. In response, appellee cited two later Florida cases involving damages for wrongful death of a child, Hooper Const. Co. v. Drake, Fla.1954, 73 So.2d 279, and Rhodes, Inc. v. Knowles, Fla.1958, 99 So.2d 302. In the Hooper case the approved damages were $35,000. The Rhodes case was a per...