Florida Motor Transp. Co. v. Hillman

• Decision Date: 24 May 1924
• Parties: FLORIDA MOTOR TRANSP. CO. v. HILLMAN.
• Court: Florida Supreme Court

101 So. 31

87 Fla. 512

FLORIDA MOTOR TRANSP. CO. v. HILLMAN.

Florida Supreme Court, Division A.

May 24, 1924

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Action by Clarence Hillman against the Florida Motor Transportation Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Declaration definitely alleging negligent act causing personal injuries sufficient so far as act complained of concerned. In an action for damages resulting from injury to one because of the negligent act of another, a declaration which definitely alleges the act which caused the injury, and that it was negligently done, sufficiently states a cause of action, in so far as the negligent act complained of is concerned.

Plaintiff not required to negative his negligence. Contributory negligence is a matter of defense. The plaintiff, in an action for damages resulting from the negligence of another is not required to negative negligence on his part.

Automobilist required to exercise reasonable care to avoid injury to persons lawfully on highway; rights and obligations of pedestrian and automobilist using highway set apart for vehicles reciprocal. The driver of an automobile is required to exercise reasonable care to avoid injury to persons lawfully upon the highway. The pedestrian and the automobile driver have equal rights in the street. The obligations of pedestrians and automobile drivers using the highways set apart for vehicles are reciprocal.

Automobilist not insurer of limbs and lives of pedestrians; automobilist not liable if there was no pre-existing negligence on his part in unavoidable accident. An automobile driver is not an insurer of the limbs and lives of pedestrians. In case of an unavoidable accident resulting in injury to a pedestrian from a moving automobile, the driver is not liable if there was no pre-existing negligence upon his part.

Plea of not guilty denies breach of duty. In an action for damages resulting from the negligent act of another, the plea of not guilty denies the alleged breach of the defendant's duty toward the plaintiff.

Contributory negligence not available if not pleaded unless appearing in evidence. Unless the defendant pleads contributory negligence on plaintiff's part, that defense is not available, and the defendant can derive no benefit from it unless the contributory negligence appears from the evidence offered in behalf of the plaintiff.

Burden of proof on plaintiff. In an action for damages resulting from the negligent act of another, where the parties go to trial upon the general issue, a charge to the jury which instructs them that the burden is upon the plaintiff to show negligence on the defendant's part is correct.

Instructions must be considered as a whole. The entire charge of the court, or the entire portion of it bearing on a subject, must be considered in determining whether the charge is free from error.

Instructions as to duty of pedestrian to observe care to avoid injury by automobile approved. In an action for damages for injury to a pedestrian on a public highway, resulting from a negligent act of the driver of an automobile, where the parties go to trial upon the general issue, a charge that it is for the jury to determine, under all the circumstances in the evidence, how far the failure on plaintiff's part to observe the approach of the automobile is indicative of want of care on his part, and that it was his duty to use ordinary care to avoid the consequences of another's negligence but that duty does not arise until the negligence of the other is existing, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence, correctly states the law.

COUNSEL

Robineau & Yonge and Frank Smathers, all of Miami, and Fred T. Myers, of Tallahassee, for plaintiff in error.

Armstead Brown, Clifton D. Benson, and Burwell & Shipp, all of Miami, and Alfred R. Kline, of Moultrie, Ga., for defendant in error.

OPINION

ELLIS J.

The defendant in error recovered a judgment against the plaintiff in error for $2,500, in an action for damages for personal injuries.

Hillman, the plaintiff below, was engaged in the work of putting up signs and advertisements on the road side on the Ingraham highway, about 1,600 feet south of Larkins Station, on the Florida East Coast Railway. He was using an automobile, and had parked the same against the corbing upon the right side of the road going south. The defendant below, the Florida Motor Transportation Company, operated a 'bus line' upon that highway. The first declaration alleged that the defendant 'carelessly and negligently propelled and ran its motor bus against and upon the said Clarence Hillman, plaintiff, with great force and violence, whereby,' etc. It was alleged that the plaintiff suffered injuries and was compelled to lay out a large sum of money for medical service and claimed $10,000 damages. A demurrer to this declaration was overruled.

A motion was made to require the plaintiff to amend his declaration by describing more particularly the injuries he sustained, to set out with greater particularity the 'negligence and carelessness' of defendant alleged to be the cause of the injury, and to describe more particularly the place where the plaintiff was injured. This motion was also overruled.

The court, however, ordered that the 'defendant's motion for a bill of particulars' be granted. The record does not disclose that any such motion was made. The bill of particulars filed showed expenses for hospital physicians, nurses, and ambulance.

The defendant pleaded not guilty, contributory negligence, and, third, that as the bus approached the plaintiff's car the operator gave due and proper signal of its approach, the plaintiff was hidden from view, and as the motor bus was passing the automobile the plaintiff, 'negligently' disregarding the signals of the approaching bus, 'stepped subdenly' in front of it; that the operator used every possible effort to avoid striking the plaintiff, but 'the left front portion of said motor bus struck the plaintiff before the motor bus could be stopped.'

On motion these pleas were stricken. Afterward the plaintiff filed an 'amended' declaration after leave granted.

Another entry, however, states that the plaintiff 'amends his declaration' by 'adding thereto two counts.' The assignment of error based upon the order overruling the demurrer to the first count, therefore, will have to be disposed of, because that count was retained. That assignment was not well taken.

The declaration alleged that the defendant 'carelessly and negligently propelled and ran its motor bus against and upon the said Clarence Hillman.' The relation between the parties was alleged to be that of travelers upon the common highway; the plaintiff walking across the highway, and the defendant driving a motor bus upon it. The act causing the injury was the driving of the motor bus against the plaintiff; that act was alleged to have been negligently done. Whether the motor bus was driven too rapidly; whether the chauffeur was incompetent, the brakes loose and ineffective, or the chauffeur inattentive--any one of these may have been the particular fact constituting the negligence which the court has held to be unnecessary to allege in the declaration. See German-American Lumber Co. v. Brock, 55 Fla. 577, 46 So. 740; Ingram-Dekle Lumber Co. v. Geiger, 71 Fla. 390, 71 So. 552, Ann. Cas. 1918A, 971; 20 Stand. Ency. Proc. 307.

The second count of the declaration as amended alleges that the accident occurred at 11 o'clock in the morning; the plaintiff had stopped his automobile on the right-hand side of the road, facing south, that he was on the left hand side of the machine, that he 'stepped back from his said automobile about 18 inches, but was still to the right of the middle of said road,' when the defendant ran its bus negligently upon the plaintiff.

The third count alleged that the plaintiff had stopped his automobile on the right-hand side of the Ingraham highway, going south, a short distance south of Larkins; that he had descended from the automobile and was standing on the left-hand side of the car 'leaning over in said car,' to get a sign which be intended to place on the left-hand side of the highway as the defendant's bus approached; that both plaintiff and his automobile were to the right of the center of the highway; that the plaintiff 'straightened up and stopped and stepped backward one step from his automobile,' still leaving him to the right of the center of the road; that the defendant negligently operated its bus and struck the plaintiff.

There is practically no difference between the second and third counts as to the position of the plaintiff's automobile and himself upon the highway. It is distinctly averred that his car was upon the right-hand side going south, and he standing upon the road between his automobile and the center of the road.

Demurrers to these counts were also overruled and such order constitutes the basis of the seventh assignment of error. There was no error in that ruling. The plaintiff was not required to negative negligence upon his part; contributory negligence is a matter of defense. See Cooney-Eckstein Co. v. King, 69 Fla. 246, 67 So. 918; City of Orlando v. Heard, 29 Fla. 581, 11 So. 182.

The order of the court striking the pleas of contributory negligence was not assigned as error; so that ruling is not reviewed. The case went to trial on the plea of not guilty.

At the close of the testimony for the plaintiff the defendant moved the court to direct a verdict in its favor. The denial of this request is made the basis of the eighth assignment.

There was...