Florida East Coast Ry. Co. v. Geiger

• Decision Date: 09 January 1914
• Citation: 66 Fla. 582,64 So. 238
• Parties: FLORIDA EAST COAST RY. CO. v. GEIGER.
• Court: Florida Supreme Court

64 So. 238

66 Fla. 582

FLORIDA EAST COAST RY. CO. v. GEIGER.

Florida Supreme Court

January 9, 1914

Error to Circuit Court, Duval County; D. A. Simmons, Judge.

Action by George Geiger against the Florida East Coast Railway Company, a corporation. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

All the points adjudicated by an appellate court upon a writ of error or an appeal become the law of the case, and are no longer open for discussion or consideration; but this principle has no applicability to and is not decisive of points presented upon a second writ of error that were not presented upon the former writ of error, and consequently were not before the appellate court for adjudication.

A judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided.

In passing upon an assignment questioning the correctness of the ruling of the trial court in denying a motion for new trial which is based upon the sufficiency of the evidence to sustain the verdict, the guiding principle for an appellate court is not what it may think the jury ought to have done or what such court may think it would have done, had it been sitting as a jury in the case, but whether, as reasonable men, the jury could have found such a verdict. If this question can be answered in the affirmative, the action of the trial court upon such motion should not be disturbed.

The verdict of a jury should be conformable to legal rules, and defensible in point of sense; it must not be absurd or whimsical. But an appellate court is not warranted in substituting its standard of what is reasonable for that of the jury. If reasonable men might have found the verdict in question, and it has received the sanction of the trial court, an appellate court should not disturb it.

The refusal of the trial court to grant a new trial for insufficiency of the evidence to sustain the verdict, or because the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the appellate court that it is wrong and unjust.

When the trial court concurs in the verdict rendered by a jury by denying the motion for a new trial, and there is evidence to support it, an appellate court should refuse to disturb it in the absence of any showing that the jurors must have been improperly influenced by considerations outside the evidence.

In an action brought by a passenger against a railroad company to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, where it clearly appears from the evidence that the plaintiff was a passenger to whom the defendant owed the highest degree of care and consideration, a strong showing would have to be made to warrant an appellate court in setting aside the concurring verdicts returned by two juries in favor of the plaintiff which verdicts have been concurred in by two different trial judges.

COUNSEL Alex St. Clair-Abrams, of Jacksonville, for plaintiff in error.

D. C. Campbell, of Jacksonville, for defendant in error.

OPINION

SHACKLEFORD C.J.

This case comes here for the second time. It is an action brought by the defendant in error, hereinafter called the plaintiff, against the plaintiff in error, hereinafter called the defendant, to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. At the first trial the plaintiff recovered a judgment for $8,333.36, which was reversed by this court for the reasons stated in the opinion. See Florida East Coast Ry. Co. v. Geiger, 64 Fla. 282, 60 So. 753. Upon the former writ of error, 21 errors were assigned. We treated such of them as we considered necessary for a proper disposition of the case. At the second trial the plaintiff recovered a judgment for $6,250, which the defendant also seeks to have reversed, and has assigned 31 errors. For the pleadings we would refer to the former opinion, wherein the first count of the declaration and the 5 pleas filed by the defendant will be found copied. One of the errors assigned upon the former writ of error was the overruling of the demurrer to the first count of the declaration, and in the opinion which we rendered we held that the assignment had not been sustained, and that such count of the declaration was sufficient to withstand the assault made upon it. We did not deem it necessary to set forth the second count of the declaration in the former opinion, nor do we consider it necessary to do so now. The only difference between the two counts is that the second count charges that the conductor of the defendant's train 'willfully and maliciously,' as well as carelessly and negligently, refused to allow the plaintiff to pass through the coach. See our discussion as to the effect of alleging that the negligence was 'willful and wanton' and the like in McGrady v. Charlotte Harbor & Northern Ry. Co., 63 So. 921, decided here at the present term. Upon the going down of the mandate, the defendant filed the following additional plea:

'And now comes the defendant, the Florida East Coast Railway Company, by Alex. St. Clair-Abrams, its attorney, and, by leave of the court first had and obtained, files this its additional plea (being the sixth plea) to the declaration herein filed, and, denying each and every allegation of each count of the declaration, says that it is not true, as alleged in said counts, that the plaintiff received injuries set forth therein by the negligence of the defendant; but the defendant says that plaintiff received the injuries complained of by his own recklessness and negligence in attempting to alight from defendant's moving train, propelled by steam, while the train and cars composing it were in motion, and coming in collision with a truck standing on the platform of the station, it being broad daylight, and said standing truck being in full sight and view of the plaintiff, and the negligence of plaintiff being the sole proximate cause of his alleged injuries.

'Wherefore the defendant says that the plaintiff ought not to have and maintain said action.'

The plaintiff joined issue upon this plea, as he had previously done upon the other pleas, and the case went to trial upon the issues as framed.

It is undoubtedly true, as we have frequently held, that all the...