Edwards v. Young, 406
| Decision Date | 01 August 1958 |
| Docket Number | No. 406,406 |
| Citation | 107 So.2d 244 |
| Parties | Edward E. EDWARDS et al., Appellants, v. E. N. YOUNG, etc., and Stylerite Homes, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Mabry, Reaves, Carlton, Fields & Ward, O. K. Reaves, J. A. McClain, Jr., Tampa, for appellants.
Macfarlane, Ferguson, Allison & Kelly, Charles F. Clark, Tampa, for appellee E. N. Young, d/b/a Young's Electric Co.
Shackleford, Farrior, Stallings, Glos & Evans, Thomas C. McDonald, Jr., James E. Lehan, Tampa, for appellee, Stylerite Homes, Inc.
This is an appeal from an order granting a new trial after a jury verdict for plaintiffs in a negligence action. Edward E. Edwards, a minor, by his next friend, Frances M. Edward and Frances M. Edwards, individually, sued E. N. Young, d/b/a Young's Electric Company, and Stylerite Homes, Inc., for injuries to the minor plaintiff which resulted when he touched a live wire on premises where the defendants were engaged in construction work. The wire was a part of a temporary electrical system which was supplying electric current to homes being constructed by Stylerite Homes, Inc., and which was installed by defendant Young under a contract with Stylerite Homes, Inc. The order of the trial judge granting a new trial stated:
'* * * it appearing to the Court that the proof submitted by the plaintiffs at the trial did not sustain the allegations of negligence charged against the defendants in the amended complaint that the defendants knocked down the elctric light poles here involved and knocked the insulation therefrom, * * *.'
Florida Statutes, Section 59.07(4), F.S.A., requires the trial judge, in his order granting a new trial, to specify the grounds thereon, and provides that on an appeal therefrom, no other grounds than those specified by the trial judge shall be considered. Our Supreme Court has held that on such appeal the statute must be followed. See Braddock v. Seaboard Air Line Ry. Co., Fla.1955, 80 So.2d 662; Leonetti v. Boone, Fla.1954, 74 So.2d 551.
The amended complaint charged that Stylerite Homes, Inc., was engaged in the business of constructing a new house and had employed E. N. Young, d/b/a Young's Electric Company, to perform the electrical work required in said house including certain temporary wires; that the defendants and each of them knew that children lived across the street from the place the defendants were constructing the aforesaid home and that there was danger that the children would walk onto the property; and that each day the defendants had the duty of using ordinary and reasonable care in keeping said electrical wires from the reach of the children.
The amended complaint then alleged that in spite of this duty, the defendants, and each of them, were negligent in that said defendants knocked out of place one of the poles holding said wires so that the wire, which was ordinarily hung at a height of over five feet from the ground, was caused to sag so that it almost touched the ground; and in that said defendants, and each of them, further removed or knocked off of the center of the wire the protective insulation therefrom so that a live wire without insulation was permitted to hang so close to the ground that a four year old child could easily touch it with his hands. Plaintiffs also alleged that after the said child touched the live wire, and effort was made to rescue him from said wire by throwing the switch to cut off the current, said switch having been placed at the spot by the defendants for the purpose of cutting off the current; that when the switch was thrown, it did not cut off the current, the switch having been improperly placed; and that therefore additional damage was suffered by the plaintiffs.
At the conclusion of the plaintiffs' case, the defendant Young moved for a directed verdict, principally on the grounds that the plaintiff had failed to prove that the defendants knocked the involved wire down and removed the insulation from it so that a four year old child would be able to touch a live wire with his hands, as alleged, and had failed even to put any testimony in the record as to such allegation. The other defendant, Stylerite Homes, Inc., in effect joined in the said...
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...(Fla.1974); Mansell v. Foss, 343 So.2d 910 (Fla. 3d DCA 1977); Tucker v. Daugherty, 122 So.2d 230 (Fla. 2d DCA 1960); Edwards v. Young, 107 So.2d 244 (Fla. 2d DCA 1958). Some post-Dober cases have continued this practice. See, e.g., Phrazer Co. v. Lawyers Title Insurance Corp., 508 So.2d 73......
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...not be said that the defendants had expressly or impliedly consented to a different ground for the action being proven. Edwards v. Young, Fla.App.1958, 107 So.2d 244. Id. at 232. (Emphasis added.) In the instant case there was no way the defendant could tell until the close of all evidence ......
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