Foulk v. Perkins, 5248
| Decision Date | 12 January 1966 |
| Docket Number | No. 5248,5248 |
| Parties | George FOULK, Appellant, v. Lottie D. PERKINS, Administratrix and surviving widow of Julian C. Perkins, Deceased, Appellee. |
| Court | Florida District Court of Appeals |
Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
Smith, Carroll, Vega, Brown & Nichols, Naples, for appellee.
The plaintiff, Lottie D. Perkins, the surviving widow of Julian C . Perkins, and administratrix of his estate, brought suit against the defendant Foulk to recover for the wrongful death of her husband under F.S. 768.01, 768.02, F.S.A., and also for damages to the decedent's estate pursuant to F.S. 45.11, F.S.A. The action arose out of fatal injuries to Mr. Perkins from an accident involving a truck owned by the defendant and operated by his employee, whose negligence was alleged to have proximately caused the fatality. Defenses of denial of negligence and of contributory negligence and assumption of risk by decedent were asserted.
Following presentation of all the evidence, the trial judge on his own motion struck the defenses of contributory negligence and assumption of risk. He also declined to permit argument to the jury on those subjects, and refused to give requested instructions on those defenses. A jury verdict in favor of the plaintiff in both capacities in which she was suing was rendered, motion for new trial was denied, and judgment on the verdicts were entered, from which an appeal is brought to this court.
The appellant-defendant presents two points which he contends entitle him to a reversal:
(1) The action of the trial court in eliminating consideration by the jury of the defenses of contributory negligence and assumption of risk; and
(2) Because of the employment status of the decedent and the defendant's truck driver, the defendant was not a third party tortfeasor under F.S. 440.39, F.S.A., against whom the plaintiff may prosecute an action for damages.
The evidence on the pertinent facts is not in material conflict. Plaintiff's decedent was employed as a bulldozer operator for Hendry County Rock Company at a place where wet marl was being dumped from trucks owned by the defendant and operated by his employees. After the marl was dumped and when a sufficient quantity of it was accumulated, the plaintiff's decedent would bulldoze it into a pit. Hendry County Rock Company was engaged in moving this wet marl from one location it owned to another location owned by it a short distance away. It had contracted with defendant to provide two trucks and drivers to effect the transfers. At the place where the marl was located the rock company had a drag line, with an operator, which dug out the marl and loaded it on the defendant's trucks. It was then taken and dumped at the place where the plaintiff's decedent, Mr. Perkins, had the bulldozer.
On May 2, 1963, one of defendant's trucks was driven into an area near the pit and it became stuck. In attempting to pull the truck out its bumper and front end were damaged. In this disabled state the truck remained where it was while its driver and another employee of the defendant undertook to repair it.
The other truck of defendant continued to make trips hauling the wet marl, and made several deliveries while the disabled truck remained where it had become stuck. These deliveries continued until after dark. A single artificial light, probably 300 watts, was attached to a pole which was struck in a mound of dirt 30 to 50 feet from the disabled truck.
The accident happened when defendant's driver was backing his 10-wheel truck, with blinker lights flashing, at something less than 3 miles per hour. Apparently he was aiming along a course which would have taken him to the dumping area and would have easily cleared the disabled truck, but the wet marl and general muddly state of the ground caused the truck to slip and skid off course so that its rear struck the front of the stationary truck. At this moment, defendant's other two employees were working underneath or near the front end of the disabled truck, each having a light which was pointed straight up beneath the truck near where they were working. Immediately after the collision, the drive moved his truck forward a few feet and it was then discovered that Perkins was lying badly injured between the two trucks. He died a few moments later from injuries which obviously he had incurred in being struck by the truck.
Perkins had been in and around the disabled truck from time to time and would on occasion during the dumping of the marl stand nearby and even comment upon or make suggestions to the truck operators. However, at the time of the accident none of the other persons at the scene knew where he was or what he was doing, though he was known to be in the general vicinity of the disabled truck.
It is in substance contended that the factual situation was such that the jury could have inferred that the decedent was so inattentive to his own safety and otherwise contributorily negligent that the plaintiff is barred from recovery. Also it is contended that there were allowable inferences of assumption of risk by the decedent to forestall recovery.
No contention is made that the evidence failed to establish a prima facie case of negligence on the part of the defendant's truck driver which proximately caused the death of Mr. Perkins. The record shows substantial competent evidence on this issue. The problem thus presented is whether there is evidence of facts from which reasonable men could lawfully conclude that defendant's own lack of due care was a proximate contributing cause of his death.
After examining the evidence we conclude that the trial judge was not in error in ruling as he inferentially did, that there was no substantial competent evidence to support the defendant's affirmative defenses.
The evidence is clear that decedent was fatally injured by being crushed between the two trucks. There is no evidence from which it could be inferred...
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