Key West Electric Co. v. Higgs

• Decision Date: 23 September 1931
• Citation: Key West Electric Co. v. Higgs, 136 So. 639, 118 Fla. 11 (Fla. 1931)
• Parties: KEY WEST ELECTRIC CO. v. HIGGS.
• Court: Florida Supreme Court

136 So. 639

118 Fla. 11

KEY WEST ELECTRIC CO. v. HIGGS.

Florida Supreme Court, Division B.

September 23, 1931

Error to Circuit Court, Monroe County; Jefferson B. Browne, Judge.

Action by Elizabeth Higgs against the Key West Electric Company.Judgment for plaintiff, and defendant brings error.

Affirmed on condition of remittitur.

BROWN J., dissenting.

Syllabus by the Court.

SYLLABUS

In an action to recover damages for the wrongful death of an employee in certain occupations the statute provides that if the employee and employer 'are both at fault, there may be a recovery, but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to both,' which means that where causal negligence is attributable partly to the defendant and partly to the injured employee, the recovery shall not be full damages, but only a diminished sum bearing the same relation to full damages that the negligence attributable to the defendant bears to the negligence attributable to both; the purpose being to exclude from the recovery a proportional part of the damages corresponding to the employee's contribution to the total negligence.

Where the trial court regarded the verdict for damages excessive and permitted a remittitur, on writ of error if the appellate court regards the amount awarded in the judgment to be excessive, a further remittitur may be suggested as an alternative for granting a new trial.

COUNSEL

Knight, Thompson & Turner, of Tampa, and Wm. H Malone, of Key West, for plaintiff in error.

Arthur Gomez, of Key West, for defendant in error.

OPINION

PER CURIAM.

In an action for wrongful death, the jury rendered a verdict for $40,000 damages.The trial court suggested a remittitur of $15,121.42, and upon such remittitur being entered, rendered judgment against the defendant for $24,878.58, being $12,878.58 for financial loss and $12,000 for solatium to the widow of the decedent.

While the evidence indicates negligence of the defendant company in not having its wires properly insulated, the testimony and physical facts show negligence of the decedent in allowing his chin to come in contact with the live wire when his task should properly have been performed with his head below the wire, he being provided with gloves to protect his hands in operating the wire.The amount of the verdict indicates noncompliance with the statute which provides that if the employee and employer 'are both at fault there may be a recovery, but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to both.'Section 7060 (4973) Compiled General Laws 1927.Under this statutory...