Frash v. Sarres
| Decision Date | 21 October 1952 |
| Citation | 60 So.2d 924 |
| Parties | FRASH v. SARRES. |
| Court | Florida Supreme Court |
Willard Ayres, Frank R. Greene and Greene, Ayres & Greene, Ocala, for appellant.
Wallace E. Sturgis, Ocala, for appellee.
This is an appeal from a final judgment pursuant to a verdict of a jury finding the defendant not guilty in a personal injury case.
Motion for new trial was made and denied.
It was alleged in the complaint that the defendant was operating a certain drive-in restaurant near Ocala; that on the morning in question the place of business had not opened and the plaintiff met the defendant at the place of business for reasons not pertinent here; that at the defendant's request the plaintiff entered upon the premises for the purpose of discussing certain matters and that at the time of such entry the said premises were closed and shuttered; that the defendant started to raise a large shutter and that plaintiff, at defendant's request, got up on an article of defendant's store equipment to assist in raising the shutter and in so doing the plaintiff's head came in close proximity to and within the arc of the unguarded and unshielded blades of one of the electric ceiling fans which was then 'not turned on and not revolving' and that while plaintiff was in said position said ceiling fan was negligently turned on suddenly and without warning to the plaintiff by one of the defendant's servants and agents; the complaint then alleges that the unguarded and unshielded blades of the fan commenced to revolve with great speed and power and struck the plaintiff on his right temple and eye which destroyed the plaintiff's eyesight in one eye. All material allegations of the complaint were denied. The answer also alleged that the defendant was guilty of negligence which contributed to the injuries complained of.
At the conclusion of all of the evidence the plaintiff requested the court to charge the jury that the doctrine of res ipsa loquitur applied in the case and that the plaintiff was entitled to the inferences or presumptions arising from that doctrine. Plaintiff requested Charge No. 4 embodies the request of the plaintiff and is as follows:
'You are instructed that in this case the doctrine of 'res ipsa loquitur' applies, meaning (Emphasis supplied.)
This requested instruction was refused by the court and the refusal is assigned as reversible error. The question before the Court is: Upon the record before this Court, is it made to appear that the lower Court committed reversible error by failing to give plaintiff's requested instruction No. 4 relating to the doctrine of res ipsa loquitur or to otherwise instruct the jury thereon?
In the case of American Dist. Electric P. Co. v. Seaboard Air Line Ry. Co., 129 Fla. 518, 177 So. 294, 297, this Court said:
'A phrase often used in actions for * * * negligence where no proof of negligence is required beyond the accident itself, which is such as necessarily to involve negligence. * * *
'The doctrine is that when a thing which causes injury without default of the person injured, is shown to be under the exclusive control of the defendant and would not cause the damage in ordinary course if the party in control used proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from defendant's want of care; * * *.' (Emphasis supplied.)
In a more recent case of Schott v. Pancoast Properties, Fla., 57 So.2d 431, 432, the Court said:
'The doctrine may not be invoked unless it appear that the thing causing the injury was so completely in the control of the defendant that, in the ordinary course of events, the mishap could not have occurred had there been proper care on the defendant's part.
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