Hardware Mut. Cas. Co. v. Tampa Elec. Co.

• Citation: 60 So.2d 179,40 A.L.R.2d 1293
• Parties: HARDWARE MUT. CAS. CO. et al. v. TAMPA ELECTRIC CO.
• Decision Date: 05 August 1952
• Court: United States State Supreme Court of Florida

Page 179

60 So.2d 179

40 A.L.R.2d 1293

HARDWARE MUT. CAS. CO. et al. v. TAMPA ELECTRIC CO.

Supreme Court of Florida, Special Division B.

Aug. 5, 1952.

Shacklefore, Farrior, Shannon & Stallings, Tampa, for appellant.

Knight, Thompson, Knight & Bell, Tampa, for appellee.

THOMAS, Justice.

Inasmuch as the judge charged the jury to return a verdict for the defendant, when the plaintiff's evidence had been introduced, we must go immediately to the transcript to ascertain the circumstances that surrounded the death of Cleve Lewis, husband of Elizabeth Lewis. In doing so we will interpret the testimony in favor of the appellant giving it the benefit of all intendments and reasonable inferences.

It was admitted on the eve of the trial that Cleve Lewis was electrocuted when he came in contact with two uninsulated wires of Tampa Electric Company, one conducting one hundred ten, the other two hundred twenty, volts of electricity to the home of Joe Cullura, situated in a citrus grove.

The rest of the facts we get from the record. The wires were installed about eight years before the unfortunate occurrence. They were fifteen feet above the ground and dark in color. In the eight years following the installation the tangerine tree where the victim was gathering fruit at the time of his death had so grown that but a few inches separated the upper branches from the wires, with a small branch of a limb in between the wires. As one witness put it, the wires were 'pretty close to the tips of the limb.'

When the man in charge of the picking crew discovered Cleve Lewis slumped over the wires at the top of the tree he rushed to Mr. Cullura's home and gave the alarm. The grower hurried to the scene, slapped the ladder to see if it carried electrical current, and feeling none pulled it away causing Lewis to tumble to the ground. He then administered artificial respiration until a doctor arrived. The physician determined that the man was dead and that the inner part of his right arm from wrist to pit was burned.

The picture may become finished with the testimony of the foreman who sent Lewis up the tree, discovered him later lying on the wire, and summoned the grower. He was supervising a crew of about a dozen men. He had assigned Lewis to the task of gathering fruit from four trees. The wires, he said, ran 'awfully close to the east side * * *' of two of them, so he cautioned Lewis to be careful. He testified that when he returned and discovered Lewis lifeless 'the ladder had the wires pushed into the tree.'

The judge concluded that there was no evidence to establish negligence in the first place and that the victim had been contributorily negligent in the second place; therefore he directed a verdict of not guilty.

At the stage of the trial when the motion for an affirmative charge was made the judge was empowered to grant it only if there was no testimony that would support a verdict for the plaintiff. Sec. 54.17, Florida Statutes 1949, and F.S.A. This was the rule he followed as is manifest from his comment that prefaced his ruling. He said to the jury that he could not 'see any negligence.' Then he added: 'With a 24 foot ladder upon a wire 15 feet high, after having been warned of it, it looks to me like as a matter of fact there is contributory negligence.'

These remarks pinpoint the issues presented by the pleadings, the salient facts developed in the evidence and the pivotal questions treated in the briefs.

The declaration contained charges, in substance, that the defendant negligently maintained wires carrying electricity, of sufficient strength to kill, amongst the branches of citrus trees so that the lives of persons working there were periled. Parenthetically, we may say that we shall ignore the appellee's criticism of the pleading because the record does not show that there was any attack on it and does not disclose any cross assignment of error.

The defendant pleaded that it was not guilty, and that Cleve Lewis 'knew, or by the exercise of reasonable care * * * should have known of the presence of the electrically charged * * * wires * * *; that he negligently omitted to use due care to avoid contacting said wires and by such omission contributed to causing his death.' The first plea put in issue the defendant's negligence; the second furnished a basis for proof by the defendant that even if it had been negligent the person killed had contributed appreciably to his own destruction. So, at the time of the directed verdict it was necessary to conclude either that the plaintiff's own testimony utterly failed to show that the defendant had been guilty of negligence, or that Cleve Lewis, wholly or in large part was the victim of his own negligence.

Now let us analyze the testimony relevant to the...