Merchants' Transp. Co. v. Daniel

• Citation: 109 Fla. 496,149 So. 401
• Parties: MERCHANTS' TRANSP. CO. v. DANIEL.
• Decision Date: 22 April 1933
• Court: United States State Supreme Court of Florida

149 So. 401

109 Fla. 496

MERCHANTS' TRANSP. CO. v. DANIEL.

Florida Supreme Court

April 22, 1933

On Rehearing July 18, 1933.

Error to Circuit Court, Polk County; Harry G. Taylor, Judge.

Action by Annie Daniel against the Merchants' Transportation Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

On Rehearing.

COUNSEL E. W. & R. C. Davis, of Orlando, Altman &amp Cooper, of Tampa, Johnson, Bosarge & Allen, of Bartow, and Waller & Pepper and W. C. Hodges, all of Tallahassee, for plaintiff in error.

Don Register, of Winter Haven, for defendant in error.

OPINION

DAVIS Chief Justice.

Annie Daniel, a widow, recovered a $5,000 judgment against Merchants' Transportation Company, a corporation, for the wrongful death of her husband, Emmet Daniel, who at the time of his death was employed by the county commissioners of Polk county as a road foreman, and engaged in doing certain road repair work in district No. 4 of Polk county, when he was struck and killed by defendant's truck. The contention here on writ of error is that upon the whole evidence the court should have taken the case from the jury by directing a verdict for defendant, and that failing to do so, it erred in the giving of certain charges to the jury which plaintiff in error asserts were harmfully erroneous.

In so far as conflicts in the evidence are concerned, they have been settled in plaintiff's favor by the jury's verdict. This court is committed by a long line of its decisions to the doctrine that the Supreme Court ought not to exercise its power to reverse a judgment solely on the facts except with caution and discrimination, and only after careful consideration of the evidence in its most favorable aspect to the party in whose favor the verdict was rendered. The test is not what the Justices of the Supreme Court would have decided had they been on the jury, but whether or not they as members of an appellate court, viewing the case in its most favorable aspect toward the successful litigant, can say that the jury as reasonable men could not have found the verdict that they did, and that therefore the verdict although approved by the trial judge, is wrong, and that by reason thereof the judgment should be accordingly reversed for a new trial. Parrish v. Clark (Fla.) 145 So 848, opinion filed January 9, 1933.

And in passing upon defendant's motion for a directed verdict, the rule is that the motion must be considered and ruled on by the trial judge in the light of its admission not only of all of the facts stated in the evidence adduced, but also its admission of all conclusions therefrom favorable to the adverse party, that a jury might fairly and reasonably infer from the evidence. In directing a verdict the court is governed practically by the same rules that are applicable to demurrers to the evidence. Gunn v. Jacksonville, 67 Fla. 40, 64 So. 435; Stevens v. Tampa Electric Co., 81 Fla. 512, 88 So. 303; Estes v. Manwarren, 100 Fla. 738, 129 So. 917; Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 So. 521.

Viewing the testimony and other evidence in this case in its most favorable asspect to the plaintiff below, the jury would have been warranted in finding that the driver of the truck had a clear view of the bridge where deceased was working, for a distance of 180 to 200 feet before reaching it; that two of the fellow workmen of deceased threw up their hands, shouted to the truck driver, and attempted to warn the driver to stop long before reaching deceased; that such warning was given at a time when the truck was some 175 feet away from the bridge where deceased was working; that although there was no unobstructed view of the bridge for a considerable distance up the road, the driver of the truck did have a clear view of 180 to 200 feet looking toward the bridge before reaching it; that although the driver claimed that he was only driving his truck around the curve at the modest speed of about 25 miles or so per hour, and could, so it was testified, at the speed he said he was driving, have stopped his truck by the efficient brakes with which it was equipped, inside of 50 feet after the brakes' application, nevertheless, the truck was so driven around the curve in the road and at such speed that, after the brakes were applied and the wheels of the vehicle locked by such application, it struck and dragged ahead of it a large pile of lumber 2 feet high, 25 or 30 feet to the open bridge, broke a bridge post, broke a 2×8 timber as well as an 8×10 timber, and then went, with its brakes still locked and its wheels still dragging, 10 to 12 feet further into the open bridge itself, where Emmet Daniels was killed.

The inference is also to be drawn from the evidence that the driver of the truck, charged with knowledge that he was driving his truck on a curve in the highway where more than ordinary care and vigilance would likely be required for his own safety and that of others, by bringing his truck under his entire control and keeping a sharp lookout in the direction of the bridge, nevertheless was not keeping such a lookout that he could see two workmen plainly visible while attempting to fiag him before he reached the bridge, nor two other men working on the bridge with the man who was killed, until just about the moment of running into the bridge and causing the injury and death complained of.

Section 1318, Comp. Gen. Laws (chapter 10186, Acts of 1925, section 1), provides that the speed of all motor vehicles shall be reduced on curves in such manner as to keep the vehile under the 'entire' control of the driver. The effect of the statute is to impose upon the drivers of motor vehicles the special duty to keep such a lookout for other vehicles and persons on curves that, if the road be not clear, 'entire' control of the motor vehicle can be exercised by the driver in such manner as to stop or turn the motor vehicle aside in ample time to avoid serious injury or death to others who must be anticipated as likely to be brought into view in the course of traversing a curve in a highway where the driver's range of view is obscured by the nature of the viatic curvature and the topography of the earth thereat. 2 R. C. L. 1184. A consideration of the foregoing rule of conduct, viewed in connection with the admissions of fact implied from the evidence by defendant's motion for a directed verdict, demonstrates that the motion was properly denied.

Defendant went to trial on several special pleas that presented the issue of contributory negligence of the deceased as related to the doctrine of 'the last clear chance,' as applied to negligence cases. The contributory negligence of the deceased was alleged to have been that he, as a road foreman, was careless and negligent in attempting to work on the bridge where he was killed, in that in his work he exposed himself to danger of being struck by an approaching motor vehicle without undertaking at the same time to protect himself from such danger by placing upon the roadway, at sufficient distances in both directions from the place of danger, signs or signals or a lookout to give warning to motor vehicles driving on the highway in that vicinity that the road was closed to traffic by reason of the making of repairs to the bridge upon which deceased was engaged in working. It was also charged that deceased had ample time, before being struck, to get out of the way of defendant's truck, had he been reasonably alert to avoid the threatened injury he must have realized to be imminent when he saw the truck about to run into the open bridge, and that therefore it was the deceased, and not the defendant's truck driver, who had the 'last clear chance' to avoid the wrongful death.

The court charged the jury, at the request of the plaintiff, and over defendant's objection, as follows:

'In this case, if you should find from the evidence that the deceased, Emmet Daniel, was careless and negligent in exposing himself to danger, but that after the said Daniel had so exposed himself to danger the driver of defendant's automobile could have avoided the injury by using ordinary care in keeping his authomobile under proper control as he drove around the curve and by keeping a proper lookout ahead and that said driver failed to use such ordinary care and that his failure in this respect was the direct cause of the injury, then you should find for the plaintiff.'

'If you find from the evidence that the conditions made and placed around the torn up bridge by the deceased Emmet Daniel, and his co-workers were such that any reasonably careful driver of an automobile approaching the bridge from either direction and observing reasonable care as to speed and lookout ahead would see the dangerous condition of the bridge in time to stop his car and avoid the injury, then you should find that there was no contributory negligence on the part of the deceased, Emmet Daniel.'

The party who last has a opportunity of avoiding an accident notwithstanding the negligence of his opponent, is considered solely responsible for it. Such is a simple statement of the doctrine of 'the last clear chance.' The last clear chance doctrine is not an exception to the general doctrine of contributory negligence. It does not permit one to recover in spite of his contributory negligence, but merely operates to relieve the negligence of a plaintiff or deceased in a particular instance, which would otherwise be regarded as contributory, from its character as such. This result it accomplishes by characterizing the negligence of the defendant, if it intervenes between the negligence of plaintiff or deceased, and the accident, as the sole proximate cause of the injury, and the plaintiff's antecedent negligence merely as a condition or...