Hart v. Held

• Decision Date: 12 December 1941
• Citation: 149 Fla. 33,5 So.2d 878
• Parties: HART et al. v. HELD.
• Court: Florida Supreme Court

5 So.2d 878

149 Fla. 33

HART et al. v. HELD.

Florida Supreme Court

December 12, 1941

Rehearing Denied Feb. 19, 1942.

THOMAS, J dissenting.

Metcalf & Finch, of West Palm Beach, for plaintiffs in error.

Paty, Warwick &amp Mooney, of West Palm Beach, for defendant in error.

PER CURIAM.

This case is here on writ of error from an order granting a new trial made and entered by the Circuit Court of Palm Beach County, Florida. The litigation arose from a collision of two automobiles at the intersection of Hunter Street and Georgia Avenue in the City of West Palm Beach on the 1st day of December, 1940.

It was alleged that Alice L. Hart was driving west on Hunter Street in said city and while crossing Georgia Avenue, defendant's station wagon, then being operated in a southerly direction on Georgia Avenue by the defendant's daughter with her knowledge and approval, negligently ran over, against or upon plaintiff's car, thereby causing it to turn over and as a result thereof plaintiff sustained enumerated injuries, and that the injuries so sustained were the proximate result of the negligent operation of the station wagon owned by the defendant and driven by her daughter.

In another count of the amended declaration the same facts were alleged, but the husband claimed damages for money expended for doctors medicine and hospital bills and the loss of his wife's society, services and consortium.

The defendant below filed pleas of not guilty and contributory negligence to counts 3 and 4 of the amended declaration, and on these issues the evidence, under appropriate instructions, was submitted to a jury, which returned a verdict of $8,000 for plaintiff-wife, Alice L. Hart, and the sum of $2,500 for the plaintiff-husband, C. E. Hart.

There was a motion for a new trial, and, after argument of counsel the lower court made and entered an order sustaining or granting the motion for a new trial on grounds, viz: (1) the verdict is contrary to the evidence; (6) the verdict is not in accord with the manifest weight of the evidence; (7) the verdict is not in accord with the justice of the case; (8) the jury failed to heed the charges of the court on the question of contributory negligence and returned a verdict contrary to said charges. From the order granting a new trial made and entered under the provisions of Section 4615, C.G.L., writ of error was taken and an appeal perfected to this Court, and it is here contended that the evidence adduced during the progress of the trial did not authorize or sustain the conclusions of the trial court for granting the motion for a new trial, as stated in grounds 1, 6, 7, and 8 of the motion.

A motion for a new trial is addressed to the sound judicial discretion of the trial court. Stronger showing is required to reverse an order allowing a new trial than one denying it. A legal presumption exists that the new trial was by the trial court properly granted. The only question to be considered by this Court on this record are: grounds of the motion 1, 6, 7, and 8 supra upon which the lower court based its order in granting the motion (See Blue & Gray Cab Co. v. Lowe et vir., 143 Fla. 129, 196 So. 425), and the application thereof to the evidence adduced. See Gulf Coast Title Co. v. Walters, 125 Fla. 427, 170 So. 130.

The plaintiff-wife, Alice L. Hart, sustained injuries at the intersection of Georgia Avenue and Hunter Street when she was traveling west on Hunter Street and the defendant was traveling south on Georgia Avenue. Hunter is a stop street, while Georgia is a through avenue. Plaintiff approached Georgia Avenue from the east and stopped her car; and, after looking north and south on Georgia Avenue, and failing to see an approaching car from either direction, in low gear drove across Georgia Avenue and was struck by the defendant's car when she had driven a short distance on Hunter Street and west of the west line of Georgia Street. There is but little dispute as to the location of the Hart car when hit by the defendant's car. The driver of the defendant's car identified the point of impact and placed there at the letter 'W' on a map admitted into evidence without objections. The defendant's car was driven by her daughter, Ethel Held, and at the time she was about 17 years of age. On the front seat of the station wagon driven by Ethel Held were a sister 15 years of age and their mother, the defendant Pearl R. Held. These witnesses testified that the station wagon in which they were riding at the time of the impact was traveling at a speed of about twenty-five miles per hour. On page 28 of the brief of the defendant in error is the following: 'It is freely admitted that the accident took place on the west side of the intersection. This shows that the station wagon was being driven on the west side of Georgia Avenue, which is where it should have been.'

On the northeast corner of the intersection of Georgia Avenue and Hunter Street existed at the time a growth of thick bushes and underbrush some 10 or 15 feet or more in height, thereby obscuring the vision of the approach of a car in a southerly direction traveling on Georgia Avenue. Plaintiff, Alice L. Hart, at this point drove further west on Hunter Street so this obstruction would not impair her vision for more than 150 feet north and south on Georgia Avenue. L. Hart attempted to cross Georgia Avenue after looking north and south while at a stop on Hunter Street. Ethel Held testified that she saw the plaintiff on Hunter Street prior to her approach to the intersection and identified the place on the map where the plaintiff's car was situated at the time by the letter 'Y'. There is no dispute in the testimony as to the existence of the brush and undergrowth at this intersection, except as given by Miss Held in stating that she saw the approach of the car of plaintiff, L. Hart, through the bursh and undergrowth while driving south on Georgia Avenue. An ordinance of the City of West Palm Beach at this intersection gave the Held car the right of way, and likewise made it the duty of the plaintiff to stop on Hunter Street.

The testimony of the defendant and her daughters was to the effect that they were driving south on Georgia Avenue at the rate of 25 miles per hour at the time of the impact at the intersection; that their car 'momentarily' stopped and rather than permit or allow it to remain in the center of the street and blocking traffic, it was driven south from the point of impact a distance of from 25 to 60 feet, when the right wheels rested on the west side of Georgia Avenue in the sand and the left wheels of the station wagon were on the pavement of Georgia Avenue. It required a wrecker to take or remove the station wagon from the scene of the accident, because the right fender by the force of the impact was driven in and mashed around the right front wheel and the wheel would not turn. It is difficult to understand how this car, after the impact at the letter 'W', could have been driven some 20 to 60 feet and come to rest with the wheels on the right side buried in the sand, when two hawsers were broken in an effort to drag it from this position and a wrecker was called to hoist and take it away.

There is no evidence to corroborate the driving of the car under its own power from point of collision to the place of rest some 20 to 60 feet away. The first aid rendered Alice L. Hart was by the occupants of the station wagon and a young Mr. Hayes, a 19 year old high school boy, who at the time of the collision, with his father, was at work 2 1/2 blocks north and 150 feet west of the point of impact. Each heard the report and rushed to the scene and succeeded in extricating plaintiff from her car. The Hayes, father and son, heard the station wagon pass their place while they were working and shortly after it passed heard the report of the impact, and, knowing the distance was 2 1/2 blocks, concluded that the defendant's car at the time of the impact was traveling at an excessive rate of speed, for immediately after it passed, 'in a split second', was heard a 'terrible crash'. It was their testimony that defendant's station wagon was 60 feet from point of impact and was identified by the numerals 'LV' on the map of the intersection. Pencil marks show the wheel tracks from point of impact along on the inside of the curb of West Georgia Avenue to where the station wagon came to rest. The defendant and two daughters testified that after the impact their station wagon 'momentarily stopped' and the car, under its own power after the impact, was driven to point of rest.

It is difficult to reconcile this testimony with the conflicting testimony of Emil Auerbach, Zalman Nulman and Max Auerbach defendant's witnesses, going to the scene and finding the right fender driven or mashed down on the front tire, and in their effort to tow it broke two hawsers, but after doubling the hawsers were able to tow it a few feet, and then called a wrecker. If this car was driven by defendant's daughter from point of impact to place of rest, the distance placed by the several witnesses, ranging from 20 to 60 feet or more after the collission, it is difficult to understand why the tire would not have been cut or blown out. The jury concluded that the car came to rest at this point after the impact and was not driven there by defendant's daughter. There is no corroborating testimony to sustain their testimony but the physical facts contradict it. The Hayes were on the scene immediately and saw the ladies emerge from the station wagon and saw the marks of the tires on the pavement made by the station wagon in direct line or course to the place of rest. It is a strong inference that the station wagon was traveling at an excessive rate of speed when the collission...