Florida Motor Lines, Inc. v. Ward

• Citation: 102 Fla. 1105,137 So. 163
• Parties: FLORIDA MOTOR LINES, Inc. v. WARD.
• Decision Date: 06 October 1931
• Court: United States State Supreme Court of Florida

137 So. 163

102 Fla. 1105

FLORIDA MOTOR LINES, Inc. v. WARD.

Florida Supreme Court

October 6, 1931

En Banc.

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Action by Mollie Jane Ward, a widow, against the Florida Motor Lines, Incorporated. Judgment for the plaintiff, and the defendant brings error.

Judgment reversed.

ELLIS J., dissenting.

Syllabus by the Court.

SYLLABUS

Section 1023, Revised General Statutes of 1920, in so far as it applies to the operation of motor vehicles on the public highways, was repealed and superseded by section 1318 Compiled General Laws of 1927; the same being section 1 of chapter 10186, Acts of 1925 Laws of Florida.

2. Statutory provisions

The latter act makes the operation of motor vehicles of more than five thousand and less than fifteen thousand pounds in weight (the weight and the class as the motorbus involved here), on the public highways outside of a city, town, or village in excess of thirty miles per hour, prima facie evidence of reckless driving.

The latter act makes the operation of motor vehicles of more than five thousand and less than fifteen thousand pounds in weight (the weight and the class as the motorbus involved here), on the public highways outside of a city, town, or village in excess of thirty miles per hour, prima facie evidence of reckless driving.

The prima facies of reckless driving is subject to be overcome by competent evidence, and unless it can be shown that such reckless driving was the proximate cause of the death or injury or had some causative connection between them, no liability would attach.

In a personal injury action, plaintiff is not required to prove his case beyond a reasonable doubt. It must be proven by a preponderance of the evidence.

A verdict and judgment in a case like this, supported by the evidence of two witnesses who were personally interested in the outcome of the litigation and whose evidence on two occasions as to the same facts was at variance and uncorroborated, should not be allowed to stand against the testimony of three disinterested witnesses whose testimony was corroborated by three other witnesses who were employees of the defendant in addition to the spilled oil from the crank case near the right edge of the pavement and the impression on the pavement made by the wheels of the motorbus when the brakes were applied, which last, though mute, showed unmistakably where the collision took place.

This is not a case in which the presumptive evidence rule as prescribed in section 4964, Revised General Statutes of 1920 (section 7051, Compiled General Laws of 1927), or the comparative negligence rule as prescribed by section 4965 Revised General Statutes of 1920 (section 7052, Compiled General Laws of 1927), may be invoked.

The right of the citizen to use the highways, including the streets of the city or town, for travel and to transport his goods, is an inherent right which cannot be taken from him but it is subject to reasonable regulations in the interest of the public good. In degree this right of the citizen is superior to that of the common carrier by motorbus, dray, coach, taxi, or other device, the latter being controlled by legislative grant, or franchise which may be regulated or denied, and may be given to some and denied to others.

9. Statutory provisions

Section 1023, Revised General Statutes of 1920 (section 1296, Compiled General Laws of 1927), in effect, provides that when the operator of a motor vehicle desires to pass other vehicles moving in the same direction and at a slower rate of speed, he shall give notice of that purpose by sounding a horn or other device at least one hundred feet to the rear of the front vehicle.

10. Importance of law of road

In our day with the good road, the motorcar, the railroad, and other devices for transporting persons and property, and both moving hither and yon in every direction at all times of the day and night, the law of the road has assumed a place of unusual importance in our legal code.

When a common carrier has been licensed and authorized to use the highways for profit, he becomes a fellow traveler, and like all other travelers is subject to the rules of the road. All travelers on the public streets and highways have the right to assume that other travelers will observe the law of the road, obey all regulations relative to the use of the highways, and in general exercise reasonable care to avoid injury to their fellow travelers.

Section 1023, Revised General Statutes of 1920 (section 1296, Compiled General Laws of 1927), in effect, provides that when the operator of a motor vehicle desires to pass other vehicles moving in the same direction and at a slower rate of speed, he shall give notice of that purpose by sounding a horn or other device at least one hundred feet to the rear of the front vehicle.

In our day with the good road, the motorcar, the railroad, and other devices for transporting persons and property, and both moving hither and yon in every direction at all times of the day and night, the law of the road has assumed a place of unusual importance in our legal code.

COUNSEL

Knight, Thompson & Turner, of Tampa, and Shutts & Bowen, of Miami, for plaintiff in error.

Arthur Codington, of Miami, John A. Fort, of Americus, Ga., and Poole & Fraser, of Atlanta, Ga., for defendant in error.

OPINION

TERRELL J.

This case grew out of a collision between a motorbus and a Dodge touring car, occurring on the Dixie Highway in Broward county, November 6, 1926. The highway where the collision took place runs north and south over level country and is straight for miles in either direction. The motorbus was owned and was being driven by plaintiff in error, and the Dodge car was owned and was being driven by the husband of defendant in error, who was killed as a result of the collision.

This action was brought by the wife of the deceased, for the wrongful death of her husband. The declaration was in one count and claimed damages in the sum of $75,000. There was a plea of the general issue and contributory negligence. At the trial, a verdict was rendered in the sum of $33,500, which was approved by the trial court on condition that plaintiff enter a remittitur in the sum of $20,000. The remittitur was entered and judgment given for the balance. Writ of error was taken to that judgment.

At the time of the accident, the motorbus was proceeding south and the Dodge car was proceeding north. A second car, facing north, was parked on the side of the highway while the occupants were mending a tire. A third car, proceeding north, drove up and parked to the rear of the second car because as the driver, Mr. C. F. Kimler, testified, he did not think he could drive around the second car and proceed on his way without danger of intercepting the motor bus. A fourth car, being the Dodge owned and driven by plaintiff's husband, was proceeding north a short distance behind the third car, and as it approached said car, it turned to the left to pass the parked cars and collided with the motorbus opposite the third car. The Dodge car was demolished, and its driver and his companion, sitting next to him in the same seat, were killed. Two men sitting in the rear seat escaped without injury.

The record discloses that this accident took place on a clear day in the late afternoon, while the sun was still shining. The road was hard-surfaced, was unobstructed, and was twenty feet wide. The two parked cars had the right wheels slightly off the pavement, some of the witnesses testified as much as one and one-half or two feet. The motorbus was running twenty-eight or thirty miles per hour and was well over to its side of the road, the right wheels being slightly off the pavement. There was evidence tending to prove that the motorbus cut sharply to the left about the time it got opposite the second car and, in doing so, struck the Dodge car near the left front door with results as stated. The verdict was evidently predicated on this testimony, but it was the uncorroborated testimony of two interested parties and was at variance with their testimony as to the same facts at a former hearing held before they were interested.

Occupants of the motorbus at the time of the accident, who were disinterested and in places of vantage, testified that the motorbus was proceeding on its side of the road, that the Dodge car turned suddenly to the left from the rear of the parked cars intending to pass them, but in doing so it swung to the opposite side of the road in the path of the motorbus and collided with the motorbus, striking it on the left front fender, left front wheel, and shock absorber. They also testified that immediately the Dodge car turned into the road from the rear of the parked cars, the driver of the motorbus applied his emergency and foot brakes, that the application was so sudden that the passengers were thrown from their seats, that the impact was so powerful that the rear wheels of the bus were locked, the steering rods were bent, the crank case cracked, and the left front wheel of the motorbus was driven back and fastened under the body, causing it to continue its course to the left side of the road, where it came to a stop some distance to the rear of the parked car. This evidence was corroborated by the testimony of the driver of the motorbus and two other witnesses, both employees of the motorbus company. It was also corroborated by the physical evidence on the ground, the condition of the motorbus after the accident, the marks of the motorbus wheels on the pavement when the brakes were applied, the tracks of the motorbus wheels on the 'shoulder' to the right of the road, the dislodged shock absorber, and the oil spilled from the...