McMillan v. Nelson

• Decision Date: 16 January 1942
• Citation: 5 So.2d 867,149 Fla. 334
• Parties: McMILLAN et al. v. NELSON.
• Court: Florida Supreme Court

5 So.2d 867

149 Fla. 334

McMILLAN et al. v. NELSON.

Florida Supreme Court

January 16, 1942

Rehearing Denied Feb. 19, 1942.

Donald Walker and George Palmer Garrett, both of Orlando, for plaintiffs in error.

E. W & R. C. Davis, of Orlando, for defendant in error.

BUFORD, Justice.

Writ of error brings for review an order granting a new trial in a suit where the trial resulted in a verdict in favor of the plaintiff for damages alleged to have been sustained while plaintiff was riding as a guest in the automobile of the defendant and in which it was alleged that the injury was caused by the gross negligence of the defendant in the operation of the automobile, in the following language:

'On to-wit March 16, 1940, in, to-wit, Orange County, Florida, at an intersection of a street called Grand Avenue and a busy arterial highway called the Orange Blossom Trial, the said Victor D. Nelson drove his automobile into said busy arterial highway without stopping when commanded to do so by an appropriate stop sign and failed to look for on-coming traffic along said highway and proceeded to drive his automobile across said highway and thereby caused his automobile to collide with another car, and thereby plaintiff, who was then and there riding in defendant's said automobile as a guest, was injured as hereinafter set forth. Said accident was thus caused by the gross negligence of said defendant which said gross negligence was the proximate cause of said injury.'

The allegations of the declaration are found sufficient to state a cause of action. On review of orders granting new trial, the rule is well settled in this jurisdiction that where the trial judge states that he does not think the verdict is sustained by a preponderance of the evidence, and grants the motion, and no such preponderance of the evidence appears as would show an abuse of the judge's discretion, his ruling will not be held reversible error. Hobbs v. Cheyney, 62 Fla. 214, 56 So. 554; Acosta v. Gingles, 65 Fla. 507, 62 So. 582; Bishop v. Taylor, 41 Fla. 77, 25 So. 287; Aberson v. Atlantic Coast Line R. Co., 68 Fla. 196, 67 So. 44; Dominguez v. Citizens' Bank, etc., Co., 62 Fla. 148, 56 So. 682; Ruff v. Georgia, Southern, etc., R. Co., 67 Fla. 224, 64 So. 782.

In the instant case the order granting the new trial states, inter alia:

'It is considered by the Court that the defendant's motion for a new trial be and the same is hereby granted on the following grounds of defendant's motion for new trial:

'1. Verdict is contrary to the law.

'3. Verdict is contrary to the evidence.

'8. Because there is a total lack of testimony showing or tending to show gross negligence.'

So here the Circuit Judge not only appears to have thought the verdict was not sustained by a preponderance of the evidence but it was his view that there was a total lack of evidence showing, or tending to show, gross negligence.

After a careful consideration of the record, we cannot say that the preponderance of the evidence appears to sustain the allegation of gross negligence and, therefore, the record does not show an abuse of the trial judge's discretion. There was evidence, however, though not a preponderance thereof, which tended to show that the defendant was guilty at the time and place of the accident of gross negligence and that that gross negligence was the proximate cause of the injury. This does not meet the rule above stated so as to require this Court to reverse the judgment of the Circuit Court.

There appears much in the record concerning the authenticity of a certain traffic sign bearing the word 'Stop' which stood on the right side of the highway on which defendant was driving just outside the intersection of that highway with an arterial highway in which intersection the accident and injury occurred. The defendant insisted that it was incumbent upon plaintiff to prove that such sign was erected by authority of the State Road Department. We do not think there is any merit in this contention. The sign, a definite warning of danger, was there. It was at a place where a dangerous condition existed, which dangerous condition, viz., the intersection of a much traveled arterial highway, was known to the defendant. It was the same character and sort of sign as those used all over the State by the State Road Department to warn of such condition and danger. If the defendant disregarded it, he did so at his peril. The sign is shown to have been so located as to give warning of danger at an intersection of which the State Road Department had jurisdiction and, therefore, in the absence of a contrary showing, it will be presumed that the sign was placed by lawful authority and that travelers were thereby warned that an unusual hazard lay immediately ahead and that due caution should be exercised by coming to a stop before entering the intersection.

If the plaintiff was entitled to recover at all, the recovery was required to be had under the provisions of Sec. 1296(a), C.G.L. Perm.Supp.1940, being Chapter 18033, Acts of 1937, known as the Guest Statute. The plaintiff in error here contends that she is not limited to recovery under the provisions of that statute, because the same, she avers, conflicts with Sec. 4 of the Declaration of Rights of The Constitution of the State of Florida.

In the case of Cormier v. Williams, 4 So.2d 525, in the last opinion therein, filed at this term of the Court, we definitely held that the terms used in the statute, viz 'gross negligence' and 'wilful and wanton misconduct' are synonymous as used in the statute. The rationale of that holding is that the words 'gross negligence' as used in the statute mean more than mere...