Mathers v. Botsford

• Court: Florida Supreme Court
• Writing for the Court: WHITFIELD, J.
• Citation: Mathers v. Botsford, 86 Fla. 40, 97 So. 282 (Fla. 1923)
• Decision Date: 14 June 1923
• Parties: MATHERS v. BOTSFORD.

97 So. 282

86 Fla. 40

MATHERS v. BOTSFORD.

Florida Supreme Court

June 14, 1923

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Action by M. R. Botsford against R. J. Mathers. There was a judgment for plaintiff, and defendant brings error.

Affirmed.

See also, 82 Fla. 497, 90 So. 375.

Ellis J., dissenting.

(Syllabut by the Court.)

COUNSEL

Price & Price, of Miami, for plaintiff in error.

McCaskill & McCaskill, of Miami, for defendant in error.

OPINION

WHITFIELD J.

This writ of error was taken to a judgment awarding $6,000 damages for personal injuries caused by an automobile running upon the plaintiff, a pedestrian, on a public highway. There is evidence from which the jury may have found actionable negligence on the part of the defendant, and that there was no negligence on the part of the plaintiff that appreciably contributed to his injury. This affords a ground of liability.

It appears that the plaintiff was walking along a public road, at night; that the defendant's automobile was behind the plaintiff going in the same direction; that just before the defendant's automobile overtook the plaintiff, a car was approaching from the front; and that the bright lights of such car blinded the driver of the defendant's car so he did not see the plaintiff, who was walking on the right side of the road, until too late to avoid the injury.

Under these circumstances, when the vision of the driver of the defendant's car was so obstructed or obscured by the bright lights on the car coming from the opposite direction that he could not see any one on the road ahead of him, it was the duty of the driver of defendant's car to exercise all ordinary and reasonable care and diligence to avoid injury to any one who might rightfully be on the road in front of him, even to the extent, if need be, of stopping his car if he could not see ahead of him because of the bright lights on the car he was meeting on the road. Pedestrians have rights in a proper use of public roads for travel, and drivers of vehicles should exercise due care so as not to injure others.

While it may be negligence for a driver of an automobile to permit the bright lights on his car to obscure or obstruct the vision of a driver of another car on a public highway, yet this does not relieve the driver of the other car of the duty to exercise due care required by the circumstances, and even to stop if that is reasonably required to avoid injury to persons who may lawfully be on the road, but whose presence is not known to the driver because of the blinding light on another vehicle then approaching.

In this case it appears from the evidence that the driver of the defendant's car did not exercise appropriate care when his vision was impeded by the blinding lights on the car he was meeting. He reasonably should have sufficiently slowed down or stopped his car rather than proceed when he could not see if any one was ahead of him, and this duty is not relieved because the driver of the other car was at fault in using his bright lights at the time, since the plaintiff was in no way responsible for the conduct of either driver and he appears to have been rightly on the road, and contributory negligence is not so shown as to make the finding of the jury contrary to the law or to the evidence.

The amount of the verdict is not shown to be grossly excessive.

The judgment should not be reversed or a new trial granted in any case, civil or criminal, for errors in rulings upon the admission or rejection of evidence or for errors in giving or refusing charges, or for errors in any other matter of procedure or practice, unless it shall appear to the court from a consideration of the entire cause that such errors injuriously affect the substantial rights of the complaining party. Nor should a judgment be reversed or a new trial granted on the ground that a verdict is not sustained by the evidence, unless it appears that there was no substantial evidence to support the finding or that upon the whole evidence the verdict is clearly wrong or that the jury were not governed by the evidence in making their finding. Welles v. Bryant, 68 Fla. 113, 66 So. 562.

Affirmed.

TAYLOR, C.J., and BROWNE, WEST, and TERRELL, JJ., concur.

ELLIS J., dissents.

DISSENTING

ELLIS, J. (dissenting).

The right of a pedestrian upon the street is neither superior nor inferior to the right of the operator of an automobile. The driver of the machine is required to exercise reasonable care to avoid injury to persons lawfully in the streets. The pedestrian and the driver of the automobile have equal rights in the streets. See Lane v. Sargent, 217 F. 237, 133 C. C. A. 231; Wollaston v. Stiltz (Del. Super.) 114 A. 198; Wortman v. Trott, 202 Ill.App. 528; Emery v. Miller, 231 Mass. 243, 120 N.E. 655; Miller v. New York Taxicab Co. (Sup.) 120 N.Y.S. 899; Schoepp v. Gerety, 263 Pa. 538, 107 A. 317; Weidner v. Otter, 171 Ky. 167, 188 S.W. 335; Dozier v. Woods, 190 Ala. 279, 67 So. 283; Texas Motor Co. v. Buffington, 134 Ark. 320, 203 S.W. 1013; Park v. Orbison, 43 Cal.App. 74, 184 P. 428; Wellington v. Reynolds, 177 Ind. 49, 97 N.E. 155; Wine v. Jones, 183 Iowa, 1166, 162 N.W. 196, 168 N.W. 318; Pool v. Brown, 89 N. J. Law, 314, 98 A. 262; King v. Holliday, 116 S.C. 463, 108 S.E. 186; Core v. Wilhelm, 127 Va. 150, 98 S.E. 27; Lampe v. Jacobsen, 46 Wash. 533, 90 P. 654.

The above rule is probably subject to the qualification that the rights of pedestrians and drivers of vehicles in the streets are equal at street crossings; but when a pedestrian is using the street as a sidewalk, a greater degree of care is imposed upon him to avoid danger than when he is crossing the street or at a street crossing.

The law imposes reciprocal obligations upon pedestrians, using that part of the street set apart for vehicles, and the driver of vehicles. What constitutes reasonable care on the part of a driver of an automobile depends upon the circumstances of the particular case as bearing upon the conduct and the affairs of men, for what may be reasonable and prudent in one case may under different circumstances and surroundings be gross negligence. White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479.

In order therefore to determine whether the requisite care was observed the running of the car must be viewed in the light of the 'exigencies of the situation.' Ginter v. O'Donoghue (Mo. App.) 179 S.W. 732.

While reasonable care is exacted of the driver of an automobile, this is far from requiring him to be an insurer against accidents to pedestrians. Barger v. Bissell, 188 Mich. 366, 154 N.W. 107; Herald v. Smith, 56 Utah, 304, 190 P. 932; Czarniski v. Security Storage & Transfer Co., 204 Mich. 276, 170 N.W. 52.

The burden is upon the injured person to show that the driver of the automobile was guilty of negligence which was the proximate cause of the injury of which he complains. Millsaps v. Brogdon, 97 Ark, 469, 134 S.W. 632, 32 L. R. A (N. S.) 1177; Winter v. Van Blarcom, 258 Mo. 418, 167 S.W. 498.

An accident to a pedestrian which is occasioned by an automobile when no wrongful act on the part of the driver of the machine is shown is classed as an 'unavoidable accident,' and no liability will attach to the driver or owner. This proposition necessarily follows from the rule that automobilists are not insurers. Simeone v. Lindsay, 6 Pennewill (Del.) 224, 65 A. 778; Stahl v. Sollenberger, 246 Pa. 525, 92 A. 720.

The principle is illustrated by those cases where an automobile is proceeding along the road or street with due care, the driver guilty of no pre-existing negligence rendering it impossible to avoid the accident, and a person steps in front of the machine or is discovered walking in front of it so close that the driver, although using every means to avoid the accident, is unable to do so. Hyde v. Hubinger, 87 Conn. 704, 87 A. 790; Stahl v. Sollenberger, supra; Sorsby v. Benninghoven, 82 Or. 345, 161 P. 251; Lemieux v. Heath, 116 Me. 55, 100 A. 1; Lovett v. Scott, 232 Mass. 541, 122 N.E. 646; Winter v. Van Blarcom, supra; Huddy on Automobiles (6th Ed.)§ 419.

More care is required of pedestrians, walking in streets between crossings, than at crossings, to avoid accidents. Arnold v. McKelvey, 253 Pa. 324, 98 A. 559.

The facts in the case were: The driver of the automobile, a young man about 18 years old, the son of the owner of the machine, was proceeding along a road outside the city limits of the city of Miami on what is known as the Dixie Highway, driving the automobile at the speed of about 15 miles per hour. The time was between 7 and 8 o'clock at night. He was traveling north and was on the right-hand side of the road. The injured man was walking on the right-hand side of the road going north. He saw the light of the approaching automobile, so he testified. He said:

'I stepped clear out on the right son none of it would strike me, but this feller must have been driving very carelessly, because I stepped out as I saw the lights, and you know you can see a light a good ways on the pavement, and I just stepped out as he struck me.'

Here was a distinct admission that he saw the lights of the approaching automobile. He was therefore warned and should have used reasonable care to avoid the accident. Referring to the lights, he said they were bright. He distinguished the light from that afforded by the dimmers. Notwithstanding this warning, he 'stepped out' as the car struck him. This statement is unintelligible. If he meant that he stepped out of the road, then he was not struck by the defendant's machine, because there is no evidence that the car left the road and ran up on the grass plot to the right. Upon the other hand, the evidence shows that the...