Hernandez v. Pensacola Coach Corp.

• Decision Date: 23 January 1940
• Citation: 141 Fla. 441,193 So. 555
• Parties: HERNANDEZ v. PENSACOLA COACH CORPORATION.
• Court: Florida Supreme Court

193 So. 555

141 Fla. 441

HERNANDEZ v. PENSACOLA COACH CORPORATION.

Florida Supreme Court, Division B.

January 23, 1940

Rehearing Denied Feb. 16, 1940.

Error to Circuit Court, Escambia County; L. L. Fabisinski, Judge.

Action by Lucille Hernandez, a minor, by her next friend, E. G Hernandez, against the Pensacola Coach Corporation to recover for injuries suffered in collision between automobile and bus. To review a judgment sustaining defendant's demurrer to the declaration, plaintiff brings error.

Reversed.

COUNSEL

Coe & McLane, of Pensacola, for plaintiff in error.

Watson & Pasco & Brown, of Pensacola, for defendant in error.

OPINION

PER CURIAM.

This case is here for review on writ of error to a final judgment on demurrer entered by the Circuit Court of Escambia County Florida. On February 15, 1939, plaintiff below, plaintiff in error here, filed an amended declaration consisting of one count, viz.:

'The plaintiff, Lucille Hernandez, a minor, by her next friend E. G. Hernandez, files this her amended declaration and sues the defendant, Pensacola Coach Corporation, a corporation, for that on the 17th day of December, A. D. 1938, the plaintiff was riding in a motor vehicle driven by C. W. Shofner, traveling toward Pensacola upon the road from the United States Naval Air Station to the said City in Escambia County, Florida, in the night-time, and the defendant being then and there engaged in the transportation of passengers for hire was operating a certain bus or coach along said road toward the said city, and the defendant then and there negligently and carelessly caused its said coach or bus to be stopped for convenience to wait for and receive passengers from a nearby roadside place of entertainment in the night-time upon said highway without turning off the road to the right so that the left wheel nearest the center of the pavement should not be more than one foot on the side of the pavement, which it was then and there possible to do, and by reason thereof a large portion of the right side of the highway in the direction in which said bus was headed was obstructed, and there was then and there a thick fog prevailing which greatly obscured vision so that the said bus could not be seen by the operator of an approaching vehicle until the same was in dangerously, close proximity thereto, and by reason of the defendant's negligence aforesaid the operator of the car in which the plaintiff was riding which was headed in the same direction as said bus did not see said bus until too close to avoid collision therewith and said car then and there collided with the rear of the said bus or coach while it was so stopped or just as it was beginning to get in motion and plaintiff suffered divers and sundry wounds and injuries, her skull was fractured and she suffers, has suffered and will hereafter suffer great mental and physical pain and is permanently disabled, for all of which she sues and claims Ten Thousand & no/100 ($10,000.00) Dollars damages.'

The defendant below elected to let the demurrer filed to the original declaration stand over to the declaration as amended. The demurrer contained some 14 grounds, but the essential grounds are viz.:

'(1) Said declaration is vague, indefinite and uncertain.

'(2) Said declaration states no actionable negligence on the part of this defendant.

(3) It appears from said declaration that the alleged negligence of this defendant was not the proximate cause of the injury suffered by the plaintiff.'

'(5) It appears from the allegations of the declaration that the only inference to be drawn therefrom is that the real proximate cause of the accident resulting in the injuries to the plaintiff complained of was the negligence and carelessness of the driver of the automobile in which the plaintiff was riding.

'(6) That it was the duty of the driver of the automobile in which the plaintiff was riding to have his said automobile under control and to keep a proper lookout ahead for other vehicles on the highway ahead of him, and to slow down his speed, and had he done so it is the natural inference from the allegations of said declaration that the accident alleged would not have occurred.'

'(8) From the facts alleged in the declaration it is apparent the injuries suffered by the plaintiff were not caused by the negligence of this defendant, and the declaration alleges no facts which if true, would render this defendant liable to the plaintiff.

'(9) Said declaration does not definitely allege that the automobile bus of this defendant was parked on said highway.'

'(13) So far as it appears from said declaration the bus of this defendant standing on the highway could be as readily observed by the driver of the automobile in which the plaintiff was riding, as it could have been seen if said bus had been in slow motion on the highway.'

It is well settled that a demurrer challenges the legal sufficiency of a pleading, and admits as true the well pleaded allegations of fact. See Heathcote v. Fairbanks, Morse & Co., 60 Fla. 97, 53 So. 950. The sufficiency of the declaration should be construed most strongly against the plaintiff when the demurrer is considered. See State ex rel. Dillman v. Tedder, 123 Fla. 188, 166 So. 590.

One of the allegations of the amended declaration, supra, is viz.: 'and the defendant then and there negligently and carelessly caused its coach or bus to be stopped for convenience to wait for and receive passengers from a nearby roadside place of entertainment in the night-time upon said highway without turning off the road to the right so that the left wheel nearest the center of the pavement should not be more than one foot on the side of the pavement, which it was then and there possible to do.'

Section 1320, C.G.L., provides that it shall be unlawful to stop any motor vehicle on the public roads, for convenience or repair, but in all cases where possible to do so shall turn off the road to the right and the left wheel nearest the center of the pavement shall not be more than one foot on the side of the pavement. It is the contention of counsel for defendant in error that Section 1320, C.G.L., is inapplicable to a bus or coach engaged in serving the public generally by stopping on the highway to receive or discharge passengers and that no cause of action is alleged by the amended declaration; also that the statute, supra, should be given a reasonable construction like those of the Michigan and Minnesota statutes reported in the cases of McAvon v. Brightmoor Transit Co., 245 Mich. 44, 222 N.W. 126, and Geisen v. Luce, 185 Minn. 479, 242 N.W. 8.

Section 1320, C.G.L., has been construed by this Court in a number of cases. See; Austin v. State, 101 Fla. 990, 132 So. 491; Wilson v. King, 116 Fla. 752, 156 So. 694; Walker v. Smith, 119 Fla. 430, 161 So. 551; Allen v. Hooper, 126 Fla. 458, 171 So. 513, and other cases. The statute makes it unlawful to park a bus or coach on the highway, but all parking is not unlawful. Whether or not a parking is in violation of Section 1320 must be determined by the facts of each particular case. In the case at bar the declaration alleges that the car or coach was parked for convenience without turning off the road to the right so that the left wheel nearest the center of the pavement should not be more than one foot on the side of the pavement,which it was then and there possible to do. The demurrer admits as true this well pleaded allegation of fact.

The plaintiff, a minor, was riding in a motor vehicle driven by C. W. Shofner, traveling the highway...