Millar v. Tropical Gables Corp.

• Decision Date: 09 January 1958
• Docket Number: No. 57-196,57-196
• Citation: 99 So.2d 589
• Parties: Marguerite P. MILLAR, Appellant, v. TROPICAL GABLES CORP., a dissolved Florida corporation, and Saul Silberman, Ralph DeChiaro, Irene P. Ingle and A. Herman Siskind, as directors and Trustees of Tropical Gables Corp., a dissolved Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 589

99 So.2d 589

Marguerite P. MILLAR, Appellant, v. TROPICAL GABLES CORP., a dissolved Florida corporation, and Saul Silberman, Ralph DeChiaro, Irene P. Ingle and A. Herman Siskind, as directors and Trustees of Tropical Gables Corp., a dissolved Florida corporation, Appellees.

No. 57-196.

District Court of Appeal of Florida, Third District.

Jan. 9, 1958.

Rehearing Denied Jan. 27, 1958.

Sams & Anderson and Phillip Goldman, Miami, for appellant.

Hill, Welsh, Cornell & Ross, Miami, for appellees.

HORTON, Judge.

The sole question presented by this appeal concerns the admissibility of the testimony of two expert witnesses called by the appellant during the course of the trial. The lower court rejected the proffered testimony of an architect and an engineer, both of whom were admittedly qualified. At the conclusion of the appellant's case, the appellees moved for directed verdict and the motion was granted. From the judgment entered on the verdict this appeal was taken.

The appellees are the operators of a pari-mutuel horse racing plant in Dade County, Florida. On December 19, 1952, the appellant went to the track of the appellees and upon entering the club house section was directed to the betting windows beneath the club house where she placed a bet. As the next race was approaching, the appellant made her way toward the track, and in so doing was required to ascend a ramp approximately twenty feet long to a concrete platform about six feet wide. From this point, the track could be observed, and beyond the platform there was a descent to the track. The testimony disclosed that there were a great number of spectators present and in the immediate vicinity of the appellant as she ascended the ramp. The appellant appears not to have had prior knowledge that there was a step at the beginning of the descent to the track and assumed that there was a ramp similar to the one by which she had ascended to the platform. Upon beginning her descent, the appellant 'stepped into space,' fell to the ground and fractured her hip.

The testimony of the two expert witnesses, an engineer and an architect, was offered for the alleged purpose of establishing that the area in which the appellant was injured was not constructed and maintained according to reasonably safe construction and engineering standards. After certain preliminary questions had been propounded to the witnesses and photographs exhibited, the appellant posed the following hypothetical question:

'Now, based on the facts that I have given you and your examination of the photographs, all of the photographs which you have seen there, in your opinion was the area described constructed and maintained according to reasonably safe construction and engineering standards of this community?'

To the above question the lower court sustained appellees' objection on the ground that the testimony sought to be elicited would be an invasion of the prerogatives of the jury, and would necessitate the witnesses expressing an opinion as to an ultimate fact in issue between the parties, to-wit: the appellees' negligence. The appellant was permitted to proffer the testimony of both the architect and engineer.

When facts are within the ordinary experience of the jury, the conclusion from those facts will be left to them, and experts will not be permitted to give their conclusions in such cases. Expert testimony generally is...