Florida Power & Light Co. v. Ahearn

• Decision Date: 17 February 1960
• Citation: 118 So.2d 21
• Parties: FLORIDA POWER AND LIGHT COMPANY, a corporation, Petitioner, v. Rita S. AHEARN, Respondent.
• Court: Florida Supreme Court

Page 21

118 So.2d 21

FLORIDA POWER AND LIGHT COMPANY, a corporation, Petitioner, v. Rita S. AHEARN, Respondent.

Supreme Court of Florida.

Feb. 17, 1960.

Fleming, O'Bryan & Fleming, Fort Lauderdale, for petitioner.

Fowler, White, Gillen, Humkey & Trenam, Cody Fowler and James O. Davis, Jr., Miami, for respondent.

O'CONNELL, Justice.

Petitioner, the Florida Power & Light Company, seeks review of the decision of the District Court of Appeal, Second District, reversing the final summary judgment of the lower court for petitioner, and of the court's order denying petition for rehearing. Petitioner contends that the decision is in conflict with the established appellate law of this state and specifically with certain, named cases. Petitioner asserts that the district court of appeal's conflict lies in view of the fact it expressly assumed that the trial court committed error.

Petitioner was defendant in the trial court in an action brought by respondent, Rita S. Ahearn, for damages due to the death of her husband by electrocution.

The decedent was the construction superintendent of the sub-contractor in charge of pile driving operations necessary for the construction of a culvert beneath a state highway. It was necessary to utilize the services of a crane. Decedent was responsible for directing the operation of the crane, which was on the highway. Decedent, holding the end of the cable from the boom of the crane, motioned the crane operator to bring the crane forward. An uninsulated high voltage wire of the defendant was suspended some 30 feet above the highway, traversing it. With his back to the crane, decedent walked beneath this wire. When the crane's boom approached, the operator, undirected by decedent, raised the boom. An electrical charge from the wire traveled through the boom and its cable, which was still held by decedent. The decedent was electrocuted.

At the trial, during plaintiff's case in chief, for the sake of convenience and brevity and with the consent of the court and of the plaintiff, defendant made three of plaintiff's witnesses its own. Plaintiff cross-examined these witnesses as to their testimony for the defendant.

At the conclusion of plaintiff's case in chief, defendant, petitioner here, moved for a directed verdict on the ground, among others, that it affirmatively appeared the decedent was guilty of negligence which proximately caused or contributed to cause the accident resulting in his death. This motion was argued for a period in excess of one hour and the court, the following morning, announced its intention to direct a verdict for the defendant 'upon the prime grounds that John T. Ahearn was guilty of negligence which proximately caused, or contributed to cause, his own death.'

The jury was called in and the court said to them:

'Lady and gentlemen of the Jury, the Court is about to direct you to return a verdict in favor of the Defendant. As you will recall, the Plaintiff has finished presenting the testimony favorable to her side of the case. And at this time it becomes the duty of the Court to review that testimony.

'The Court has done so and found that the evidence is such that under no view which it may lawfully take of that evidence and of the reasonable inferences arising therefrom favorable to the Plaintiff should a verdict for her be sustained. * * *' (Emphasis added.)

The court the commented on its findings as to decedent's responsibilities and activities, saying:

'* * * And, by his causing the crane to be rigged in that area [the area of defendant's high voltage wire], or failing to prevent it from being rigged in that area, the law says then that he is guilty of negligence which proximately contributed to cause his own injury.'

The court concluded with an expression of its reluctance to remove the case from the jury's consideration, commenting upon the 'precious' right of jury trial. A final judgment was then entered by the court upon defendant's motion for directed verdict.

Plaintiff appealed to the district court of appeal, raising three points: (1) whether the trial court properly directed verdict for the defendant at the end of plaintiff's case in chief in view of the fact the court had heard the testimony of three of defendant's witnesses taken out of turn; (2) whether plaintiff had made out a prima facie case of negligence against the defendant; and (3) whether the decedent was guilty of negligence which proximately contributed to cause his own death.

The district court of appeal reversed the trial court on the first point involved in the appeal and therefore found consideration of the other two points not essential.

In its opinion, the district court of appeal noted that the testimony of defendant's three witnesses was adverse to the plaintiff's case. It then referred to § 54.17, F.S.A., which provides in effect that a verdict may be directed for a defendant either at the conclusion of the plaintiff's case in chief or at the conclusion of the presentation of all the evidence of the parties.

It was then argued by the court that the plaintiff was denied opportunity to offer rebuttal testimony to that of the witnesses for defendant. It said cross-examination of such witnesses by the plaintiff was not equivalent to a right of rebuttal. The court concluded:

'Consequently, since the directed verdict was not restricted to the evidence of the plaintiff's case in chief, the trial judge committed reversible error, with the result that the case must be remanded for a new trial. * * *'

Defendant then petitioned the district court of appeal for rehearing, stressing the argument that there was no proof in the record that the trial judge had considered the testimony...