H. E. Wolfe Const. Co. Inc. v. Ellison

• Decision Date: 03 August 1936
• Citation: 127 Fla. 808,174 So. 594
• Court: Florida Supreme Court
• Parties: H. E. WOLFE CONST. CO., Inc. v. ELLISON.

174 So. 594

127 Fla. 808

H. E. WOLFE CONST. CO., Inc. v. ELLISON.

Florida Supreme Court

August 3, 1936

On Rehearing May 21, 1937.

Second Rehearing Denied June 14, 1937.

Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.

Action by Nila Larue Ellison, joined by W. A. Ellison, her husband and next friend, against the H. E. Wolfe Construction Company, Inc., and another. To review an adverse judgment the named defendant brings error.

Affirmed.

ELLIS C.J., and BUFORD, J., dissenting.

COUNSEL

Gedney, Johnston & Lilienthal, of West Palm Beach, for plaintiff in error.

A. R. Johnson, of West Palm Beach, for defendant in error.

OPINION

WHITFIELD, Chief Justice.

H. E. Wolfe Construction Company, Inc., and Barco Motors, Inc., were together charged in each count of the declaration with negligence which resulted in the injury alleged. The verdict found for the plaintiff against the defendant H. E. Wolfe Construction Company, Inc., in the sum of $10,000 and found the defendant Barco Motors, Inc., not guilty. A motion for new trial was filed by the defendant H. E. Wolfe Construction Company, Inc., which motion was denied upon the entry by the plaintiff of a remittitur in the sum of $2,500, the grounds of the motion for new trial being that the verdict is contrary to the law, contrary to the weight of the evidence, contrary to the law and the evidence and to the instructions given by the court to the jury, and is excessive; and that the court erred in refusing a directed verdict for H. E. Wolfe Construction Company, Inc. A judgment was rendered against the defendant H. E. Wolfe Construction Company, Inc., in favor of the plaintiff for $7,500 damages, and judgment was also rendered against the plaintiff in favor of the defendant Barco Motors, Inc.

A writ of error to the judgment was taken by H. E. Wolfe Construction Company, Inc. The errors assigned are that the verdict is contrary to the evidence, contrary to the law, contrary to the law and the evidence, and is excessive; the refusal of a directed verdict and a new trial for the defendant H. E. Wolfe Construction Company, Inc.

The defendant H. E. Wolfe Construction Company, Inc., who took writ of error, had a right to challenge the correctness of the verdict and judgment for the codefendant, Barco Motors, Inc., as well as the correctness of the verdict and judgment against H. E. Wolfe Construction Company, Inc., in favor of the plaintiff. The two defendants were in effect charged with concurring negligence; both defended and the evidence applies to the negligence alleged against each of the codefendants.

The evidence shows negligence on the part of the defendant Barco Motors, Inc., that proximately contributed to the injury alleged; and, as the plaintiff in error is injured by the verdict and judgment against it and in favor of its codefendant below, the plaintiff in error should be entitled to relief when its motion for new trial challenged the verdict as an entirety as being contrary to the law and to the evidence. The motion for new trial was denied.

Section 4637(2918), C.G.L. provides that:

'It shall be the duty of the court on an appeal or writ of error to examine the record, to reverse or affirm the judgment, sentence or decree of the court below, or to give such judgment, sentence or decree as the court below ought to have given, or as to it may appear according to law.'

In view of the nature of the negligence charged against each defendant and of the evidence adduced and the verdict rendered, complete justice in the cause can best be done by reversing the judgment in its entirety for a new trial in due course of law.

ELLIS, P.J., and TERRELL, BROWN, BUFORD, and DAVIS, JJ., concur.

CONCURRING

BUFORD Justice (concurring specially).

Plaintiff in error is a road construction contractor.

While repairing a portion of a state highway under contract with the state road department in Florida, the contractor, with the approval of the state road department, routed traffic around the place where the repair work was in progress by way of a designated detour and, to effectuate this purpose, set up a signboard 8 feet long and 6 feet high directing the traffic to the detour. In the nighttime the contractor kept three adequate red lights burning on this obstruction or barricade, which lights were amply sufficient to warn the public traveling on the highway of the location and position of the obstruction or barricade and to light the detour sign thereon.

Defendant in error, while a passenger by invitation in the automobile of another, was injured when the automobile was driven into the barricade in the nighttime. She sued the owner of the automobile and the contractor as tort-feasors. She alleged that the automobile was so negligently driven and handled as to cause the accident and injury and:

'That on to-wit: July 13th, 1934, the defendant H. E. Wolfe Construction Company, Inc., was engaged in the construction and repair of a certain public highway known as Dixie Highway between Town of Ojus and the City of Miami in Dade County, Florida, and did construct and maintain a certain barricade upon said highway approximately thirty feet (30') south of the County line separating Broward from Dade County, Florida; that said highway was at point of barricade and for many miles north therefrom a smooth paved highway used extensively by the public in automobiles entering the City of Miami; said highway at point of barricade being approximately nineteen feet (19') in width and said barricade being approximately one hundred feet (100') south of an easterly curve in said highway; that said defendant, H. E. Wolfe Construction Company, Inc., so negligently and carelessly constructed and maintained said barricade as to make it dangerous to life and property of persons using said highway at night time in this to-wit: said barricade consisted of a solid wall of boards approximately seventy inches (70"') high six feet twenty-two and a half inches (6' 22 1/2"') in width, held together by certain large heavy timbers securely nailed and behind said barricade and as a support thereof was piled approximately three (3) tons of rock, part of which extended approximately eighteen inches (18) out and over the highway on both ends or sides of said boarded wall aforesaid; said barricade not being illuminated nor otherwise lighted, in a manner to give warning to motorists upon said highway.'

'And for second count, plaintiff says: that on towit: July 13th, 1934, H. E. Wolfe Construction Company, Inc., being engaged in the construction of a certain public highway in Dade County, Florida, between Ojus and Miami, Florida, did build, construct and maintain a certain barricade upon said highway near the County Line separating Broward and Dade County, in such a negligent and careless manner as to be dangerous to life and property of persons traveling upon said highway at night time in this to-wit: said barricade consisted of a board wall approximately seventy inches (70"') high, approximately six feet twenty-two and a half inches (6' 22 1/2"') in width, held together with certain other timbers securely nailed; behind this boarded wall and as a support thereof was piled several tons of rock, part of which extended out over the highway and beyond the ends of said boarded wall to a distance of approximately eighteen inches (18"'); said barricade being located south of an easterly curve in said highway whereby the lights from an approaching automobile upon said highway would not shine upon said barricade until said approaching automobile had completed the curve and would thereby be within approximately seventy-five feet (75') of said barricade; that defendant failed and neglected, upon the night of July 13th, 1934, to have said barricade illuminated or otherwise lighted in such a manner as to give approaching motorists warning of its presence, nor did defendant have other means of warning to motorists upon said highway of the presence of said barricade.'

There were other similar allegations in nowise materially different from these.

The jury found in favor of the defendant automobile owner and against the contractor.

The obstruction placed on the highway was not an unlawful one when considered in connection with the purpose for which, and the manner in which, it was being used. It was properly lighted and so arranged to give reasonable and prudent persons traveling on the highway fair warning and opportunity to pursue a safe and convenient way to proceed on a journey in that locality. Such sign and obstructions are required for the safety and convenience of the traveling public.

No such negligence as is alleged in the declaration to have been committed by the contractor is shown by the evidence to have been so committed by it.

The testimony of the driver of the automobile shows affirmatively that he was at the time driving the automobile in such a manner as to be guilty of negligence as defined by this court in the opinion in the case of Union Bus Co. v. Smith, as Administrator, 104 Fla. 569, 140 So. 631, in which we held:

'Driving automobile in joint enterprise at rate preventing its control within driver's vision constituted negligence, preventing recovery for death of driver's companion if it contributed thereto.'

In the instant case neither the question of joint enterprise nor of contributory negligence is presented. But the rule, that to avoid being guilty of actionable negligence the driver of an automobile must so operate the automobile as to have it in control within his vision, is applicable. If his scope of vision is shortened on a curve he must proportionately reduce his speed. His speed must be such that he can safely stop his automobile...