Hainlin v. Budge

• Decision Date: 24 November 1908
• Citation: 47 So. 825,56 Fla. 342
• Parties: HAINLIN v. BUDGE.
• Court: Florida Supreme Court

47 So. 825

56 Fla. 342

HAINLIN v. BUDGE.

Florida Supreme Court, Division A.

November 24, 1908

Headnotes Filed December 11, 1908.

Error to Circuit Court, Dade County; Minor S. Jones, Judge.

Action by Mary F. Hainlin against Frank T. Budge. Judgment for defendant, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

The office of a bill of exceptions is to give the facts on which the trial court decided, and it should give all the facts bearing upon the decision, so that the appellate court may know fully and clearly everything which influenced the decision of the trial court.

At a general rule, exceptions can bring in question only the proceedings had in a cause at the term at which the exceptions are presented, and cannot reach proceedings had at a previous or subsequent term. Where the proceedings in the cause occur at two different terms, the proceedings of each term should be embodied in a separate bill of exceptions which should be made up, presented, settled, and filed within the time prescribed by statute and rule of court.

A bill of exceptions should be made up and signed during the term of the court at which the trial is had, unless by special order of the court further time is allowed. The requirements of rule 97 (14 Fla. 32) of the Rules of Circuit Court in common-law actions relating thereto should be complied with in all respects.

Upon the entry of an order granting a new trial at law, the party aggrieved by such order may, under the provisions of section 1695 of the General Statutes of 1906, without waiting for a final judgment in the cause, prosecute a writ of error to the proper appellate court, or, under the provisions of section 1693 of such Statutes, may wait until final judgment is rendered therein and then sue out a writ of error and assign as error the granting of the motion for a new trial. Such party, however, cannot, in a bill of exceptions made up of proceedings which took place at the second trial, incorporate therein matters which occurred at the first trial, upon which error is assigned, and have the same passed upon by an appellate court. The proceedings of each term should be embodied in a separate bill of exceptions.

Section 1696 of the General Statutes of 1906, relating to the procurement of bills of exceptions, being in derogation of the common law, must be strictly construed.

Every presumption is in favor of the correctness of rulings made by the trial court, and this presumption of correctness and regularity attaches and applies with peculiar force to orders granting new trials.

The following requested instruction by the plaintiff, in an action seeking to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, is improperly refused:

'If you believe from the evidence herein that the plaintiff in this action, through the negligence of the defendant, was placed in a situation where she must adopt a perilous alternative, or where in the terror of an emergency, for which she was not responsible and for which the defendant was responsible, she acted wildly or negligently and suffered in consequence, such negligent conduct, under these circumstances, is not contributory negligence, for the reason that persons in great peril are not to be required to exercise all that presence of mind and carefulness which are justly required of a careful and prudent man under ordinary circumstances. In such a case the negligent act of the defendant is the proximate cause of the injury, and the plaintiff may have her action.'

It is error, however, to add to such proffered and refused instruction the following paragraph, and then give it 'On the other hand, if the plaintiff's act resulted from a rash apprehension of danger which did not exist, and the injury which plaintiff sustained is to be attributed to rashness and imprudence, then the plaintiff is not entitled to recover.'

In an action seeking to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, it is error to give an instruction to the jury in substance to the effect that the danger must actually exist and not simply be apparent imminent danger to one placed in a perilous situation, where very quick decision and action were required.

The following instruction is erroneous, confusing, and well calculated to mislead the jury: 'There is no presumption of law that the defendant has been negligent, arising from the mere fact of the happening of the accident. The burden is upon the plaintiff to prove that the defendant was to blame for the accident, and the evidence in the case must also convince you that the plaintiff did not by her carelessness contribute to the accident.'

In an action seeking to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, all that may properly be required of the plaintiff is to establish by competent evidence the negligence of the defendant in causing the injury as laid in the declaration. She cannot be required to show that she was not guilty of contributory negligence, such burden being cast upon the defendant. Not only is it not essential that the whole evidence convince the jury that the plaintiff was not guilty of contributory negligence, the burden is the other way, and if the evidence is evenly balanced the fact of contributory negligence is not established, and upon this issue the verdict should be for the plaintiff.

The terms 'reasonable prudence,' 'ordinary care,' and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be ordinary care in one case may under different surroundings and circumstances be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to know the special circumstances of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonably prudent men under a similar state of affairs. [Quoting Words and Phrases, vol. 7, p. 5976.]

COUNSEL

Hudson & Boggs, for plaintiff in error.

Geo. M Robbins, for defendant in error. On the 26th day of October, 1905, the plaintiff in error brought an action against the defendant in error in the circuit court for Dade county, seeking to recover damages for personal injuries received by the plaintiff by reason of the alleged negligence of the defendant.

The declaration is as follows: 'Mary F. Hainlin, by F. M. Hudson, her attorney, sues Frank T. Budge in an action of trespass and for cause of action says:

'On the 6th day of June, A. D. 1905, in the city of Miami, Dade county, and state of Florida, the defendant, Frank T. Budge, was the owner of a certain motor vehicle known as an automobile, the same being a vehicle propelled by power other than muscular power and not running upon rails or tracks, and on said day the said defendant was then and there using and operating said automobile as a means of transportation on the streets of said city of Miami, the same being then and there a densely populated city, and the said streets being habitually used for great and continued traffic. And said defendant then and there drove, ran, operated, and conducted his said automobile upon and along a certain public highway in said city known and designated as 'Avenue C,' to and upon the intersection of said Avenue C with Sixth street and into the said Sixth street, the same being a public street of said city; and the said defendant then and there negligently operated the said automobile at a rate of speed greater than is proper and reasonable, and negligently failed and refused to give any warning or signal of the approach of his said automobile, and negligently failed and refused to use reasonable precaution to insure the safety of the plaintiff; and by reason of such failure and refusal, and because of such default and as a result of the negligence of defendant as above specified, the said defendant then and there negligently and wrongfully operated, drove, and guided his said automobile against, upon, and over the plaintiff, Mary F. Hainlin, and with said automobile struck the plaintiff with great force and violence and knocked her down, and with the wheels of said automobile ran over the plaintiff, while the plaintiff was then and there with all due care and diligence rightfully and lawfully using and occupying the public highway above mentioned, namely, Avenue C at its intersection with Sixth street; and thereby the said plaintiff was greatly bruised, hurt, wounded, and injured, to wit, by wounds in the plaintiff's head, by wounds upon each of the arms of the plaintiff, by a wound to the plaintiff's spine, and grievous internal wounds, and by reason of the aforesaid injuries the plaintiff then and there became lame, sick, and disordered, and afflicted with nervous prostration, and has so continued for a long time, to wit, from thence hitherto, and was during all that time thereby rendered incapable of following and transacting her affairs and business by her during that time to be done, and plaintiff has suffered great pain and mental anguish; and also plaintiff was thereby obliged to, and necessarily did, incur great expense in obtaining medical aid and other assistance. And the plaintiff further alleges that the said injuries and disorders are permanent and incurable.

'For her damages the plaintiff claims the sum of ten thousand ($10,000) dollars.'

The defendant filed the following pleas:

'The defendant, Frank T. Budge, by Patterson & Erwin, his attorneys, complained of in the declaration herein, says that he is not guilty of...