Davis v. Ivey
| Decision Date | 05 March 1927 |
| Citation | 112 So. 264,93 Fla. 387 |
| Parties | DAVIS, Director General of Railroads v. IVEY et al. |
| Court | Florida Supreme Court |
En Banc.
Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Action by C. B. Ivey and another against James C. Davis, as Agent of the President of the United States, Director General of Railroads, for damages. Judgment for plaintiffs, and defendant brings error.
Affirmed.
Syllabus by the Court
Instructions on issue of wrongful flooding of land by railroad held proper. The charges requested by the defendant and given by the court appear to present a very full statement of the issues, but these charges do not contain the only statements of the issues given in the charge to the jury. The charge was full, clear, and comprehensive, and we have been unable to find any reversible error committed by the court, either in the giving of the charge or in the refusal to give other charges requested.
Impeaching evidence showing interest, must be based on predicate laid by cross-examination as to facts sought to be proved, and evidence offered must be best evidence of such facts; best evidence to show interest of witness offered at proper time and place of trial is admissible; in action against railroad company, excluding testimony by court clerk that plaintiffs' witnesses had suits pending against defendant was not error, predicate not having been laid by cross-examination. We do not mean to say evidence of the interest, bias, prejudice, or motives of a witness can only be shown after a predicate laid by cross-examination of the witness as to the facts sought to be proven, but if the purpose of such evidence is to impeach the adverse witness then it must be based upon such a predicate, and the evidence offered must be of that character which is the best evidence of the facts sought to be proven. If the evidence is offered only for the purpose of showing interest of a witness, and the best evidence of such fact is offered at the proper time and place of the trial, it would be error for the court to refuse to admit such evidence.
Defendant may show interest of plaintiff's witness by cross-examination or in evidence in chief; interest of plaintiff's witness in rebuttal may be shown by evidence in surrebuttal; admission of evidence in surrebuttal, showing interest of adverse witness testifying in presentation of case in chief, is in discretion of trial court. If the plaintiff offered a witness in presenting his case in chief and the defendant wishes to show the interest of that witness, he may either show the interest by cross-examination of the witness or in his evidence in chief. So, if the plaintiff offers a witness in rebuttal, it is proper to show the interest of that witness by evidence in surrebuttal, if proper evidence of such interest is offered. It is, however within the discretion of the trial court to allow or refuse evidence in surrebuttal tending to show the interest of an adverse witness whose testimony was given in the presentation of the case in chief, because there must be a limit fixed at some place where the recalling of witnesses will be stopped.
Limiting railroad's evidence of weather conditions to area having 15-mile radius of land flooded held not abuse of discretion. Assignments of error 50 to 53, inclusive, and 86 to 120 inclusive, are based upon the action of the court in confining the testimony in regard to water conditions and rainfall to an arbitrary area included within a circle having the locus in quo as a center and having a 15-mile radius, and refusing to permit the defendant to offer any evidence concerning weather conditions outside the area. It became the duty of the court to fix some limit as to the area which should be covered by testimony in regard to water, rainfall, and weather conditions, and to fix the limits of such area so that any evidence touching same would have some logical and reasonable bearing upon conditions as they would be found to exist at the locus in quo. It seems to us that the trial judge was not unreasonable in fixing the limits of this area in the manner stated, and that he exercised no abuse of discretion, and counsel has cited no authority in support of his contention that, in limiting the area as limited by the court, an abuse of discretion occurred.
Failure to exercise reasonable diligence to guard against act of God, which can be guarded against, is actionable negligence. While it is true that no human agency can prevent or stay an act of God, the act itself being that of omnipotence and irresistible, it is frequently the case that the results which are natural consequences of an act of God by the exercise of reasonable foresight and prudence may be foreseen and guarded against. Where this can be done by the exercise of reasonable diligence and prudence, a failure to do so would be negligence and subject the party upon whom this duty devolved to damages, although the original cause was an act of God.
Party changing or restraining flow of water must provide against more than ordinary rainfall occasionally occurring at irregular intervals. The principle clearly is that, although a rainfall may be more than ordinary, yet if it be such as has occasionally occurred, and it may be at irregular intervals, it is to be foreseen that it will occur again, and it is the duty of those changing or restraining the flow of water to provide against the consequences that will result from it. It is within the knowledge of all who have resided long in this state that our streams are occasionally subject, after intervals, which are sometimes of shorter and sometimes of longer duration, to great floods occasioned by very heavy rainfalls, and their heights are known by those who have felt interest in them. Such rainfalls were not usual and ordinary, but they were unusual and beyond ordinary--i. e., they were extraordinary--and yet, it is just as certain that like rainfalls will occur in the future as it is that the same laws of nature by which they are produced and the same conditions to be affected by these laws will continue to exist in the future as they have in the past. Though of rare occurrence, such rainfalls are not phenomenal and therefore beyond reasonable anticipation, and hence it is but the prudence that a discreet man would exercise in his own affairs to provide against injury from them. The question then is not whether appellant has sufficiently provided for the escape of the water of ordinary floods, but, Has it provided for the escape of water of such unusual or extraordinary floods as it should have anticipated would occasionally occur in the future, because they had occasionally occurred after intervals though of irregular duration in the past?
Where evidence gives room for difference of opinion between reasonable men as to ultimate fact to be established, case should be submitted to jury; railroad's negligence in failing to prepare for unusual flood held for jury. Where, on the evidence adduced, there is room for a difference of opinion between reasonable men as to the existence of facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the court should submit the case to the jury for their finding, as it is their conclusion in such cases that should prevail, and not primarily the views of the judge.
All fair intendments consistent with record should be indulged in favor of verdict responsive to issues made by pleadings. All fair intendments consistent with the record should be indulged in favor of a verdict that is responsive to the issues made by the pleadings.
Objections to form of verdict should be made before discharge of jury. Objections to the form of the verdict should be made before the jury is discharged.
Record may be resorted to to aid verdict; verdict made certain by resort to record is sufficient. The record in the cause may be resorted to in aid of a verdict, and, when such record makes the verdict certain in every respect, it is sufficient.
Use of singular for plural, or vice versa, in verdicts in designating parties, not rendering decision obscure, does not amount to variance between verdict and judgment. In verdicts, in designating the parties, the use of the singular for the plural, or vice versa will not amount to a variance between the verdict and judgment, where it is evidently a mistake and does not cast obscurity upon the decision.
New trial should not be granted for excessive damages, unless amount shocks judicial conscience or indicates passion or prejudice of jury; in action against railroad for flooding land, verdict for $8,288 held not excessive. A new trial should not be granted for excessive damages, unless the amount is such as to shock the judicial conscience or to indicate that the jury must have been influenced unduly by passion or prejudice.
New trial should not be granted if relevant testimony sustains verdict, though some irrelevant testimony was admitted. A new trial should not be granted where the relevant testimony duly sustains the verdict, though some irrelevant testimony has been admitted.
New trial will not be granted because of admission of illegal evidence to prove fact fully established by legal evidence, where verdict was not influenced by illegal evidence. A new trial will not be granted because of the admission of illegal evidence to prove a fact which was fully established by legal evidence; it being clear that the verdict was not influenced thereby.
Robert H. Anderson, of Jacksonville, and Stafford Caldwell, of Coral Gables, for plaintiff in error.
A. H. & Roswell King and Evan Evans, all of Jacksonville, for defendants in error.
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