Ellingson v. Willis, F-84

• Decision Date: 29 December 1964
• Docket Number: No. F-84,F-84
• Parties: Lloyd T. ELLINGSON, Appellant, v. Douglas F. WILLIS, Appellee.
• Court: Florida District Court of Appeals

Page 311

170 So.2d 311

Lloyd T. ELLINGSON, Appellant, v. Douglas F. WILLIS, Appellee.

No. F-84.

District Court of Appeal of Florida, First District.

Dec. 29, 1964.

Truett & Watkins, Tallahassee, for appellant.

Keen, O'Kelley & Spitz, Tallahassee, for appellee.

GOODING, MARION W., Associate Judge.

Appellant was the original defendant in a law action by the appellee seeking damages for the allegedly negligent operation of a motor vehicle by appellant which resulted in injuries to the appellant and the death of appellee's wife and infant son. Appellee sought both compensatory and punitive damages.

Answer was filed by appellant denying generally any negligence on his part, and specifically denying that any negligent operation of his motor vehicle caused or contributed to causing the death of appellee's wife and infant son.

The Jury returned a verdict in favor of the appellee:

"We, the jury find for the plaintiff and against the defendant and assess his

damages at:

                1.  Compensation for his personal injuries                            $ 1,500.00
                2.  For punitive damages                                                       0
                3.  Compensation for death of wife                                     45,000.00
                4.  Compensation for death of child                                    16,000.00
                                                            -----------------------------------
                                                     TOTAL                           $62,500.00
                So say we all
                                          Tallahassee, Florida, November 7, 1963
                                                              / R. E. Carter
                                                                Foreman"
                

A claim for set off against judgment, pursuant to Section 54.28, Florida Statutes, F.S.A., was filed on behalf of the defendant, and the Court rendered its decision allowing a set off of $14,200.00, which was the amount of a settlement made previously by appellee with the operator of a third motor vehicle involved in the accident.

Final Judgment if favor of appellee was subsequently entered in the amount of $48,684.80, and it is from this Judgment that the appellant brings this appeal. A cross assignment of error was filed by the appellee solely to question the matter of the set off.

The testimony and evidence at the trial established that an accident occurred on Sunday, December 3, 1961, about 6:15 P.M. on State Road No. 10 at a point approximately 5 8/10th miles West of Tallahassee in Leon County, Florida, involving an automobile owned and operated by appellant, Ellingson, and one being operated by appellee, Willis, in whose automobile as passengers were appellee's wife and two minor children. The accident occurred immediately in front of a location known as Parkinson's Landing at the east end of a bridge across the Ochlocknee River. Immediately west of the bridge the highway is straight and level for approximately 1 3/10ths miles and immediately to the east of the bridge the view is level and clear for approximately 20o to 225 feet before a hill. The bridge is some 600 to 650 feet long.

Appellee, Willis', vehicle was proceeding from Quincy in an Easterly direction toward Tallahassee and as it proceeded across the bridge over the Ochlocknee River, appellant, Ellingson's, vehicle came out from the driveway leading into Parkinson's Landing and the two vehicles came into collision.

The vehicles stopped in a general 'V' position on the highway with the Willis vehicle headed generally in a Northeasterly direction and the Ellingson vehicle in a Northerly or Northwesterly direction.

Mrs. Willis was helping her infant son out of the car when a third vehicle operated by one James Ramsey ran directly between the two vehicles which had been involved in the first accident, and in the process Mrs. Willis and her infant son were killed. There is conflict in the testimony of the time elapsing between the first and second accidents varying from estimates of from two to four minutes.

We are not concerned in this appeal as to the responsibility for the initial accident. The only issue with which we are concerned here pertain to the responsibility for the second accident and the resulting deaths.

Appellant submitted to a drunkometer test about 7:55 P.M. the night of the accident (one hour and forty minutes after the accident) and reading on the drunkometer test was .187 per cent (.150 per cent or above is considered to be under the influence).

A Motion for Directed Verdict in the wrongful death actions was made by Defendant at the conclusion of Plaintiff's testimony and evidence and was denied by the Court.

The first point raised by the appellant on appeal is the denial of appellant's Motion for Directed Verdict in the wrongful death actions on the ground that the facts revealed the appellant's negligence was not one of the proximate causes of the second collision because Ramsey was negligent, as a matter of law, and that his (Ramsey's) negligence was, as a matter of law, an intervening, independent cause of the second collision, and that the second collision was, as a matter of law, an unnatural and improbable consequence of the appellant's negligence.

Appellant contends that his motion for a directed Verdict made at the conclusion of Plaintiff's case and renewed at the conclusion of all the evidence should have been granted on the grounds that the second accident (the Ramsey collision) was the independent, intervening efficient cause of the deaths. Appellant takes the position that Ramsey had level terrain for a long distance and should have seen the accident and stopped, and since there was no special circumstances which would prevent Ramsey from observing that which was before him the second accident was an independent, intervening, efficient cause or the proximate cause of the deaths. Appellant relies upon the case of Pope v. Pinkerton-Hays Lumber Company, Fla.App.,App., 120 So.2d 227, in which Judge Wigginton quoted from and followed the rule announced by the Supreme Court, speaking through Justice Sebring, in the case of Cone v Inter County Tel. & Tel. Co., 40 So.2d 148 (Fla.App.,1949); as follows:

'Not every negligent act of omission or commission gives rise to a cause of action for injuries sustained by another. It is only when injury to a person who himself is without contributing fault has resulted directly and in ordinary natural sequence from a negligent act without the intervention of any independent efficient cause, or is such as ordinarily and naturally should have been regarded as a probable, not a mere possible, result of the negligent act, that such injured person is entitled to recover damages as compensation for his loss. Conversely, when the loss is not a direct result of the negligent act complained of, or does not follow in natural ordinary sequence from such act but is merely a possible, as distinguished from a natural and probable, result of the negligence, recovery will not be allowed. Seaboard Air Line Ry. Co. v. Mullin, 70 Fla.App., 450, 70 So. 467, L.R.A.1916D, 982, Ann.Cas.1918A, 1918A, 576 . "Natural and probable" consequences are those which a person by prudent human foresight can be expected to anticipate as likely to result from an act because they happen so frequently from the commission of such act that in the field of human experience they may be expected to happen again. 'Possible' consequences are those which happen so infrequently from the commission of a particular act, that in the field of human experience they are not expected as likely to happen again from the commission of the same act. See 38 Am.Jur. 712, Negligence, Sec. 61.' (40 So.2d 149.)

See also Schatz v. 7-Eleven, Inc., 128 So.2d 901, (Fla.App.,App. 1st 1961).

'If an independent efficient cause intervenes between the negligence and the injury, and the original negligence does not directly contribute to the force or effectiveness of the intervening cause, the original negligence is not regarded as a proximate cause of the injury, even though the injury might not have occurred but for the original negligence. A proximate cause stands next in causal relation to the effect. * * * A proximate cause produces the result in continuous sequence, and without which the result would not have occurred.'

Quoted in General Telephone Co. of Florida, Inc. v. Mahr, 153 So.2d 13, 17 (Fla.App.,App.2d (1963) from Tampa Electric Co. v. Jones, 138 Fla.App., 746, 190 So. 26 (1939).

Appellant concludes during the 2 to 4 minutes between the accidents, the victims could have moved to a place of safety, or the second accident could have been avoided had Ramsey been attentive and seen what was within his range of vision or within the range required by statute for effective visibility of headlights at night (350 feet under § 317.58, F.S.A., Loftin v. McCrainie, 47 So.2d 298, 302 (Fla.App.,1950) held:

'* * * No intervening...