Dunn Bus Service v. Mckinley

• Decision Date: 02 November 1937
• Citation: 130 Fla. 778,178 So. 865
• Parties: DUNN BUS SERVICE, Inc. v. McKINLEY et al.
• Court: Florida Supreme Court

178 So. 865

130 Fla. 778

DUNN BUS SERVICE, Inc. v. McKINLEY et al.

Florida Supreme Court

November 2, 1937

Petition for certiorari by the Dunn Bus Service, Incorporated, to review and quash a judgment of the circuit court which affirmed a judgment of the civil court of record in favor of Oradelle McKinley, joined by her husband, L. T. McKinley, and L. T. McKinley against petitioner.

Petition denied.

COUNSELChappell & Brown, of Miami, for petitioner.

W. H Burwell, of Miami, for respondents.

OPINION

BROWN Justice.

The petitioner, Dunn Bus Service, Inc., a Florida corporation filed its petition praying that this court grant writ of certiorari to review and quash a judgment of the circuit court of the Eleventh judicial circuit in and for Dade county wherein and whereby said circuit court affirmed a judgment of the civil court of record rendered in favor of Oradelle McKinley and her husband, L. T. McKinley, and against the petitioner, Dunn Bus Service, Inc.This petition for the issuance of the writ was accompanied by a copy of the record in the court below and a brief in support of the petition pursuant to the prescribed rules of this court.Upon consideration of the petition, record, and briefs, filed in behalf of both petitioner and respondents, this court denied the petition ^[1] upon the authority of the case of Morris v. State,110 Fla. 95, 148 So. 182.Thereupon a petition for rehearing was filed in this court and a rehearing granted.

Upon further consideration of this case on rehearing, this court sees no good reason for departing from its decision already made.The only question urged on rehearing which we think requires any discussion is that set forth in the second 'question involved,' which in substance is as follows:

Where plaintiff's declaration charges negligence in general terms, and the defendant pleads the general issue and plaintiff's contributory negligence, and the plaintiff does not interpose any replication to the plea of contributory negligence setting up the defendant's 'last clear chance' to avoid injuring the plaintiff, and where there is some evidence tending to prove defendant's plea of contributory negligence on the part of plaintiff, is it error on the part of the trial court to submit the case to the jury upon instructions which include a charge upon the doctrine of the last clear chance?

Pretermitting any discussion of the question as to whether or not such action on the part of the trial court would constitute at most a mere error and not such a departure from the fundamental requirements of the law as to justify the granting of writ of certiorari, we will, in view of the novelty and importance of the question, and the earnestness with which it has been urged upon us by petitioner, discuss it as briefly as may be.

This litigaton grew out of a collision between an automobile being driven by Mrs. McKinley and a bus being driven by an employee of Dunn Bus Service, Inc., which collision occurred at a street intersection located in a residential section in the western part of the city of Miami; that is, at the intersection of N.W. Twenty-third avenue and N.W. First street.The declaration charged negligence in general terms; i. e., that defendant's employee, while acting within the scope of his employment, negligently and carelessly propelled said bus into, upon and against said automobile operated by plaintiffOradelle McKinley, inflicting upon her certain personal injuries, and that the negligence so charged was the proximate cause of said injuries.The second count in behalf of the coplaintiff husband made similar charges and set up the damages which had been occasioned to him thereby.

The defendant interposed two pleas, the first being the plea of not guilty, or the general issue, and the second being a plea charging plaintiffOradelle McKinley in general terms with contributory negligence in the operation of her automobile and that this negligence on her part proximately contributed to causing the injury and damage claimed by the plaintiffs.The plaintiffs filed joinder of issue upon defendant's pleas.

It will thus be seen that the declaration charged that defendant's negligence was the proximate cause of plaintiffs' injuries, while the defendant's first plea denied this, and its second plea in effect said that even if the defendant had been guilty of the negligence charged in plaintiffs' declaration, yet plaintiffs were not entitled to recover on account of negligence on the part of the plaintiffOradelle McKinley which proximately contributed to causing the injuries complained of.Plaintiffs took issue upon this plea; and thus we have the question of the proximate cause of the collision and resulting injuries distinctly raised by the pleadings of both plaintiffs and defendant.

Our view is that the doctrine of 'last clear chance' is but one of many applications of the principle of 'proximate cause' to the facts of the particular case or cases as they arise, which principle of proximate cause has of course always been recognized by this court as one of the elements entering into actionable negligence.Therefore the issue of fact as to whether the defendant had the last clear chance to avoid the collision and resulting injuries in this case was within the issues raised by the pleadings.

Plaintiffs' declaration charged that defendant's negligence was the proximate cause of plaintiffs' injuries and by taking issue upon defendant's pleas, plaintiffs denied that Mrs. McKinley was guilty of any negligence whichproximately contributed to causing her said injuries.

The ordinances of the city of Miami provided that motor vehicles crossing street intersections shall not exceed a speed of fifteen miles per hour, and that drivers along the avenues running north and south shall have the right of way over drivers along the streets running east and west.While the testimony was sharply in conflict, there was testimony in this case tending to prove that Mrs. McKinley, who was driving west on N.W. First street, entered the intersection at Twenty-Third avenue at about twenty two miles per hour, and that the bus was coming south down the avenue at about the same rate of speed; that there was some obstruction to Mrs. McKinley's view as she approached the avenue, but her own testimony indicates that she was not keeping a proper lookout as she entered the avenue because she did not see the bus at all until it was almost upon her.The driver of the bus saw Mrs. McKinley's car when it was fifty or seventy-five yards back from the intersection.There was also evidence tending to show that at the time of the collision Mrs. McKinley's automobile had passed several feet beyond the center of the avenue, and that the driver of the bus could have avoided the collision with plaintiffs' car as it crossed the street ahead of him, by swerving the bus slightly to the left, or by promptly putting on the brakes and giving plaintiff's car a chance to get entirely by; but there is evidence tending to show that, instead of doing either, he turned his bus slightly to the right and hit plaintiffs' car near the rear wheel on the right-hand side of the car, causing it to spin around and overturn.According to plaintiff's testimony, when she had entered the avenue and saw the bus bearing down upon her, she attempted to speed up her car and get out of the way, and was considerably past the center of the avenue and turning her car to the left away from the bus when the bus collided with the rear of her car.

While we have held in many cases that contributory negligence is an affirmative defense and should be specially pleaded, yet we have also held that the question of contributory negligence may be submitted to the jury, even though not specially pleaded where it affirmatively appears from testimony introduced by the plaintiff.And in actions against railroad companies for damages, we have held that contributory negligence, as a basis for reducing damages, may be considered by the jury, under proper instructions from the court, when shown by the evidence of either party, though not pleaded.Atlantic Coast Line R. Co. v. Webb,112 Fla. 449, 150 So. 741, and cases cited.We think therefore that in this case the...