Kayo Oil Company v. Sammons
| Decision Date | 04 September 1963 |
| Docket Number | No. 19770.,19770. |
| Citation | 321 F.2d 729 |
| Parties | KAYO OIL COMPANY and Max Cook, Appellants, v. Annette SAMMONS, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas C. MacDonald, Jr., Tampa, Fla., for appellants.
E. B. Rood, Tampa, Fla., Wm. C. Grimes, Bradenton, Fla., for appellee.
Before CAMERON and WISDOM, Circuit Judges, and DeVANE, District Judge.
Annette Sammons, appellee, instituted a wrongful death action under Section 768.01, Florida Statutes, F.S.A., in the United States District Court for the Southern District of Florida, Tampa Division, against Kayo Oil Company, a corporation, and Max Cook, an employee of Kayo, appellants. Appellee claimed that her husband met his death in a motor vehicle accident through the negligence of appellant Cook while operating a tractor-trailer owned by appellant Kayo. Federal jurisdiction is based upon diversity of citizenship of the parties.
By answer appellants denied negligence of Cook and asserted contributory negligence of the decedent. Upon jury trial before the Court a verdict was returned in favor of appellee and against appellants and appropriate final judgment entered thereon. Timely post-trial motions were made and overruled and this appeal from the final judgment ensued.
The facts for the purpose of this appeal are quite simple. The decedent, while driving his truck north on Florida State Road 43 on July 2, 1960, at approximately 1:25 A. M., collided with the tractor-trailer owned by appellant Kayo, which was being driven south by appellant Cook. Decedent was alone at the time of the accident and met his death almost instantly. It is undisputed in this record that the point of collision was in the northbound lane or the lane in which decedent's truck lawfully belonged.
Appellant Cook was alone in his tractor and was the only eye witness to the accident. Cook explained his presence in the northbound lane as an effort on his part to avoid the oncoming truck of appellee's decedent after observing the lights of the same approaching him in his lane. He testified he waited for the truck to return to its proper lane as long as he could when he veered to the left into the other lane. He testified further that at the same time decedent turned back into his proper lane and he hit the decedent's truck headon in that lane.
Appellants' theory of the accident was supported by the testimony of an expert witness who testified from the physical facts as he found them to be by photographs and other evidence in the record. Conversely, appellee through an expert witness and the investigating highway trooper submitted evidence to the effect that the physical facts satisfied them that Cook negligently veered into the wrong lane and struck the truck operated by decedent in decedent's proper lane.
The width of the road where the accident occurred was 24 feet and the width of the shoulders on each side were 30 feet from the edge of the pavement. The shoulders were in good condition. There was no other traffic on the road and visibility was good. Appellant Cook testified that he was going 55 miles an hour at the time of the accident and that he knew the speed limit was 45 miles an hour. Cook also testified that he had driven the road previously.
Only two assignments of error are made. The first error relied upon relates to the refusal of the trial Court to give requested instructions numbered 13, 14, and 15 concerning the legal effect of Cook's explanation of his presence in the wrong lane. Appellants contend on this appeal that these three instructions had been approved by the Supreme Court of Florida in other automobile accident cases and for this reason appellants were entitled to have them given verbatim as requested. The Court, while using in substance the essence of these instructions, gave them in its own language, declining to give instructions 13, 14 and 15 specifically in the language proposed by appellants.
An examination of the instructions given by the Court in the case reveals that all the questions presented by these instructions were appropriately given to the jury in the Court's own language. It has many times been declared the law by Federal Appellate...
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Reyes v. Wyeth Laboratories
...23 L.Ed. 286. 43 See note 27 supra. 44 Delancey v. Motichek Towing Service, Inc., 5 Cir. 1970, 427 F.2d 897, 902; Kayo Oil Co. v. Sammons, 5 Cir. 1963, 321 F.2d 729, 730. 45 See McClendon v. Reynolds Electrical & Engineering, 5 Cir. 1970, 432 F.2d 320, 323; Government Employees' Insurance C......
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U.S. v. Ruppel
...So long as the charge correctly states the law to the jury it matters not what words the judge chooses to employ. Kayo Oil Co. v. Sammans, 321 F.2d 729, 730 (5th Cir. 1963). The instruction given by the judge correctly expresses the law of this circuit. The jury was told that they should "c......
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Parker v. S/S DOROTHE OLENDORFF
...latitude in the choice of language used to convey to the jury in a clear and correct fashion the applicable law\'. Kayo Oil Co. v. Sammons, 5 Cir., 1963, 321 F.2d 729, 730. See also Nowell v. Dick, 5 Cir., 1969, 413 F.2d 1204. If the instruction as given sufficiently covers the case so that......
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Delancey v. Motichek Towing Service, Inc., 27401.
...latitude in the choice of language used to convey to the jury in a clear and correct fashion the applicable law". Kayo Oil Co. v. Sammons, 5 Cir. 1963, 321 F.2d 729, 730. See also Nowell v. Dick, 5 Cir. 1969, 413 F.2d 1204. If the instruction as given sufficiently covers the case so that a ......