Midstate Hauling Co. v. Fowler, 33499

• Decision Date: 19 May 1965
• Docket Number: No. 33499,33499
• Citation: 176 So.2d 87
• Parties: MIDSTATE HAULING COMPANY, a Florida corporation, and Robert O. Knight, Petitioners, v. J. T. FOWLER, Respondent.
• Court: Florida Supreme Court

Page 87

176 So.2d 87

MIDSTATE HAULING COMPANY, a Florida corporation, and Robert O. Knight, Petitioners, v. J. T. FOWLER, Respondent.

No. 33499.

Supreme Court of Florida.

May 19, 1965.

Rehearing Denied July 2, 1965.

Monroe E. McDonald, of Sanders, McEwan, Schwarz & Mims, Orlando, for petitioners.

Donald Walker and Charles M. McCarty, Orlando, for respondent.

CALDWELL, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Second District. ¹ We have jurisdiction because of conflict between the decision under review and prior decisions of this Court.

The plaintiff, respondent herein, sued the defendants, petitioners, for damages resulting from the fatal injury of his three-year-old son, allegedly caused by the negligent operation of the truck of the defendant, Midstate Hauling Company, by the defendant driver, Robert O. Knight. The jury found for the defendants and, after denial of a motion for a new trial, plaintiff appealed, assigning as error the giving of an instruction on sudden emergency and 'darting out.'

The District Court of Appeal, Second District, in reversing and remanding the cause for a new trial, relied on Bellere v. Masden, 114 So.2d 619, 80 A.L.R.2d 1 (Fla.1959), and on the Virginia case of Ball v. Witten, 155 Va. 40, 154 S.E. 547 (1930), and held that, under the facts, an instruction on sudden emergency and darting out should not have been given because: ²

'It may not be said that the perilous situation was not created or contributed to by the driver of the truck. In view of the weight and speed of the truck, its width and the width of the road, the height of the driver's eye-level from the ground, and the unpredictable nature of small children, if a perilous situation existed it was created by the driver. The driver had ample opportunity to see and appreciate the dangerous situation long before the accident occurred. The accident was not unavoidable.'

The jury instruction in question, closely paralleling instructions approved by this Court in Klepper v. Breslin, 83 So.2d 587 (Fla.1955), is as follows:

'Where the operator of a motor vehicle by a sudden emergency not due to his own negligence, is placed in a position of imminent danger and has insufficient time to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment as is required under ordinary circumstances, and if he pursues a course of action to avoid an accident such as a person of ordinary prudence placed in a like position might choose, he is not guilty of negligence even though he did not adopt the wisest choice.

'If you find from the evidence that the plaintiff's decedent, Regal Deran Fowler, darted or ran suddenly on to the highway in front of the defendant's truck, provided there was no ngligence on the part of the defendant, Robert O. Knight, while the truck operated by Knight was too close for Knight to avoid hitting the child in the exercise of ordinary care as defined in these instructions, the collision between the defendant's truck and the said Regal Deran Fowler would be an unavoidable accident and you should find the defendants not guilty.'

Petitioners contend the questioned instruction was proper or, in the alternative, was harmless error because there is evidence in the record supporting the verdict on grounds independent of the doctrines of sudden emergency and darting. The appellate court will not substitute its judgment for that of the jury where there is, in the record, competent substantial evidence to support the verdict. Mr. Justice Hobson, in Glass v. Parrish, ³ discussed the rule:

'This Court has repeatedly pronounced, as has almost every court in the English speaking world, the rule that it will not substitute its judgment for that of a jury when the jury has resolved the conflicts in the evidence and has determined the issues of fact. An exception to this rule exists only in a case wherein there is no competent substantial evidence which sustains the jury's verdict or, stated in another form, when the verdict is against the manifest weight of the evidence. The pronouncement of the foregoing rule is consistently made, published and republished. Regretably, at times there may have been room for the feeling that all courts have not adhered to the rule as religiously as they have proclaimed it. It is possible too that appellate courts are not entirely free from the criticism that they have fortuitously lost sight of the province of appellate courts. These courts were not established for the purpose of trying cases de novo on cold typewritten transcripts. An appellate court has the duty to consider and determine whether a case was tried in the nisi prius court under the principles, rules and regulations prescribed for its conduct. In other words, the appellate court should reverse judgments of trial courts in those cases only wherein it has been made to appear clearly that the prescribed procedure was not followed and that harmful error resulted from such obliquity.'

The District Court accepted the testimony of the twelve-year-old sister and fifteen-year-old brother of the deceased child that, after the truck became visible, the deceased crossed and recrossed the road before the accident and rejected the evidence of the independent eye witness, Mrs. McIlvanie, that she did not see the child cross the road. The District Court also rejected the testimony of the defendant driver that, although he was watching the...