Greyhound Corp. v. Ford

• Decision Date: 04 October 1963
• Docket Number: 3649,Nos. 3648,s. 3648
• Citation: 157 So.2d 427
• Parties: The GREYHOUND CORPORATION, a corporation, Appellant, v. Sudella FORD, Appellee.
• Court: Florida District Court of Appeals

Page 427

157 So.2d 427

The GREYHOUND CORPORATION, a corporation, Appellant, v. Sudella FORD, Appellee.

Nos. 3648, 3649.

District Court of Appeal of Florida, Second District.

Oct. 4, 1963.

Rehearing Denied Nov. 14, 1963.

John W. Boult, of Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for appellant.

T. Paine Kelly, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.

ODOM, ARCHIE M., Associate Judge.

This is an appeal from a final judgment in a negligence action based on jury verdict for plaintiff, appellee.

Because of the nature of the questions involved in this appeal, it is unnecessary to go into great detail in discussing the facts presented to the jury. This case involved a 'rear-end' collision--defendant, appellant, ran into the rear of appellee, plaintiff's car resulting in personal injuries to appellee. Both appellant and appellee presented evidence on the issue of negligence.

The first question raised in this appeal is directed at the instructions given to the jury by the trial court. The questioned charge is stated as follows:

'Now, if you find frim the evidence that the Defendant, Greyhound Corporation, operated their bus that they were driving at the time of the accident, so that the driver was not able to stop before running into the rear of the automobile driven by the Plaintiff, then the Defendant is presumed to be guilty of negligence, and has the burden of showing by some reasonable explanation, that he was not negligent. That presumption raises however, only where the Plaintiff, that is the person in the front, is fully complying with the rules of the road and the law. In other words, that presumption would be present if you find the fact to be that the Plaintiff was fully complying with the law. The presumption would not be present in the event you find that the Plaintiff was not fully complying with the law as of that time that the accident or impact occurred. It is up to you to determine whether it has been explained away by the facts and circumstances surrounding the accident that have been given to you by the evidence here.'

Is the presumption of negligence arising from a rear-end collision a proper subject for the jury to consider in arriving at a verdict or does it disappear when evidence is offered by the defendant to explain the accident?

The leading case on this subject is McNulty v. Cusack, Fla.App.1958, 104 So.2d 785. The question in that case as stated by the Court was:

'Whether the showing of a rear-end collision and the circumstances under which it occurred, in the absence of explanation, gives rise to a presumption of negligence so as to authorize a directed verdict, or whether it only gives rise to an inference of negligence sufficient for presentation to the jury.'

The Court answered the question in the following language:

'We agree with the circuit judge that the facts above stated created a presumption of negligence and not an inference of negligence and that, in the absence of an explanation from the defendant, a verdict should have been directed by the lower court in favor of the plaintiff.'

The Court went further in the McNulty case with one statement which is important to the decision in the case at bar:

'If the defendant had a justifiable reason for not observing traffic rules, then it was his duty to go forward with the evidence to show that he was not negligent and thus, permit the case to go to a jury for the jury's determination on conflicting theories or facts.'

It will be noted that this last quote from the McNulty case contains one duty for the defendant and one for the jury. The defendant must go forward with the evidence and the jury must decide the case on conflicting theories or facts.

The case of Jeskey v. Yellow Cab Company, Fla.App.1962, 136 So.2d 376, involved a rear-end collision. The facts in that case were briefly that plaintiff made a sudden stop because a car pulled out in front of him and that twenty to thirty seconds later defendant hit him from the rear. Defendant claimed he was following plaintiff by a car length-and-a-half and couldn't stop in time to avoid the collision. It was further noted that this was an unexpected stop at such a location where a stop was unlikely.

In upholding the trial judge in denying plaintiff's motion for a directed verdict on liability and motion for new trial based on the presumption as defined in the McNulty case the court said:

'The appellee (defendant) argued correctly that there was 'an explanation from the defendant,' which together with the circumstances of the accident, was sufficient to rebut the presumption and present issues of negligence and contributory negligence for determination by the jury.'

In the case of Rianhard v. Rice, Fla.App.1960, 119 So.2d 730, contains this statement as to the effect of the rear-end collision presumption:

'In McNulty v. Cusack, Fla.App.1958, 104 So.2d 785, and Shedden v. Yellow Cab Co. of Miami, Fla.App.1958, 105 So.2d 388, it was held, in the limited field of rear-end collisions, that where the leading vehicle is located within its proper place on the highway, proof of an accident such as is here involved raises a presumption of negligence on the part of the overtaking vehicle. In essence, the presumption is one in aid of evidence. It is, moreover, a naked presumption which is dissipated upon the introduction of evidence reflecting due care on the part of the operator of the overtaking vehicle.'

Summarizing these three cases we see that a presumption of negligence arises from a rear-end collision which 1., requires defendant to go forward with the evidence, McNulty case; 2., is a rebuttable presumption, Jeskey case; and 3., is a naked presumption which is dissipated upon the introduction of evidence reflecting due care, Rianhard case.

Section 768.05, Florida Statutes, F.S.A., provides as follows in part:

'A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employ and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.'

In construing the presumption there created the Supreme Court of Florida in Atlantic Coast Line R. Co. v. Voss (1939) 136 Fla. 32, 186 So. 199, stated:

'[I]f any material evidence is offered, by the railroad company tending to show the exercise of ordinary and reasonable care and diligence on its part, the presumption vanishes.

'In a controverted issue such as is presented here when...