Hart v. Jackson
| Decision Date | 19 June 1962 |
| Docket Number | No. D-90,D-90 |
| Citation | 142 So.2d 326 |
| Parties | Douglas HART, Appellant, v. J. C. JACKSON, Appellee. |
| Court | Florida District Court of Appeals |
Larkin, Lewis & Decker, Jacksonville, for appellant.
Howell, Kirby, Montgomery & Sands, Jacksonville, for appellee.
Complaint of negligence was brought by appellant-plaintiff against appellee-defendant, by which plaintiff sought redress in damages for injuries received as a result of defendant's truck backing into him. From a jury verdict in favor of defendant, plaintiff appealed.
Plaintiff asserts in seven points various errors on the part of the trial court. The one justiciable point raised by plaintiff concerns a charge by the trial judge to the jury on inevitable accident. The terms 'inevitable accident' and 'unavoidable accident' are synonymous. 1 Plaintiff takes the position that since the facts surrounding this accident reveal that it was caused by human agency as distinguished from a mechanical defect or act of God that such charge was error.
No useful purpose would be served by detailing the facts in this case. However, of particular significance is the fact that the injured plaintiff was a seven year old boy at the time of the accident. Competent evidence was presented upon which the jury could have reached its verdict for the defendant upon one of the following hypotheses, viz:
1. That the defendant was not guilty of committing any act of negligence, and that due to his tender age immaturity, the plaintiff child could not be charged with negligence; therefore, the accident occurred without anybody being legally accountable for the ensuing damages.
2. That the defendant was not guilty of committing any act of negligence and the sole proximate cause of the accident was the negligent actions and conduct of the minor plaintiff.
3. That the defendant was guilty of negligent conduct and that the plaintiff by reason of his mentality, intelligence, experience, training, discretion, and alertness was capable of being and was contributorily negligent. 2
It is the first hypothesis that needs consideration in view of the charge of inevitable accident. The evidence permitted a finding by the jury that the boy, due to his tender age and immaturity, was not legally chargeable with contributory negligence. 3 The evidence also permitted a finding by the jury that the defendant was free of negligence.
As stated in Union Bus Co. v. Bowen, 4 in affirming a judgment for plaintiff based on a verdict at a trial in which the defenses were not guilty and contributory negligence, the opinion quotes and approves this charge on unavoidable accident:
'The Court charges you that an unavoidable accident is such an accident as occurs without anybody being to blame for it, that is, without anybody being guilty of negligence in doing so, or permitting it to be done, or in omitting to do, the particular thing that causes said [unavoidable] accident.'
and as said in Florida Motor Lines v. Casad: 5
And as stated in Sirmons v. Pittman: 6
'The principle of law invoking the doctrine of 'unavoidable accident' is applicable only when under some theory of the case the injury does not result from negligence of either of the parties.' [Emphasis supplied.]
It was technically incorrect under the facts in this case to charge the jury with the doctrine of unavoidable accident. Conceding that the jury in this case would have been warranted to conclude that the plaintiff, because of his tender age, was not accountable for his acts of negligence, and recognizing that upon so concluding...
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Smith v. Canevary
...So.2d 591 (Fla. 4th DCA 1967); Retty v. Troy, 188 So.2d 568 (Fla. 2d DCA 1966), cert. denied, 200 So.2d 814 (Fla.1967); Hart v. Jackson, 142 So.2d 326 (Fla. 1st DCA 1962); Sirmons v. Pittman, 138 So.2d 765 (Fla. 1st DCA 1962); McCollum v. Florida Power & Light Co., 125 So.2d 754 (Fla. 3d DC......
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Schaub v. Linehan
...317 S.W.2d 713 (1958); Hodgson v. Pohl, 16 N.J.Super. 87, 83 A.2d 783, 786, affirmed 9 N.J. 488, 89 A.2d 24 (1952); Hart v. Jackson, 142 So.2d 326, 328 (Fla.App.1962); Chicago, Rock Island & Pacific R. Co. v. Goodson, 242 F.2d 203 (5th Cir. 1957). We have often said that the determination w......
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Retty v. Troy
...contributing to the collision.' Such quoted observation is clearly inappropriate to any theory of the case here. In Hart v. Jackson, Fla.App.1962, 142 So.2d 326, a charge had been given the jury in the Court below on 'unavoidable accident' which was held on appeal to be erroneous in the lig......
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American Nat. Bank of Jacksonville v. Norris, s. II-8 and II-234
...that the instructions given were not prejudicial to the bank. See OWCA v. Zemzicki, 137 So.2d 876 (Fla.2d DCA 1972); Hart v. Jackson, 142 So.2d 326 (Fla.1st DCA 1962); Winn Dixie Stores, Inc. v. Nall, 302 So.2d 781 (Fla.3d DCA 1974); and Section 59.041, Florida Statutes We have considered t......