Moore v. Dietrich
Decision Date | 02 August 1938 |
Citation | 183 So. 2,133 Fla. 809 |
Parties | MOORE v. DIETRICH. |
Court | Florida Supreme Court |
Error to Circuit Court, Leon County; J. B. Johnson, Judge.
Action by Ulmer Moore against Robert Dietrich for personal injuries allegedly arising out of the negligent operation of a motor vehicle by the defendant. To review the judgment, the plaintiff brings error.
Reversed.
COUNSEL B. K. Roberts and H. H. Wells, both of Tallahassee, for plaintiff in error.
W. C Hodges and Whitfield & Whitfield, all of Tallahassee, for defendant in error.
This cause is here on writ of error issued under date of March 13 1937, directed to the Circuit Court of Leon County, Florida. The transcript shows that on the 31st day of March, 1936, plaintiff filed his declaration consisting of one count alleging personal injuries sustained due to the negligent operation of a motor vehicle by the defendant on February 2, 1936, on State Highway No. 19 in Leon County Florida. The defendant, on November 30, 1936, filed five pleas to the declaration: (1) Not guilty; (2) that D. L. Hood and plaintiff were engaged in a joint enterprise; (3) contributory negligence on the part of D. L. Hood with the plaintiff while engaged in a joint enterprise; (4) contributory negligence; (5) a special plea.
The cause was heard by a jury on the 14th day of December, 1936, and plaintiff adduced considerable testimony showing: (a) Plaintiff's injury; (b) a curve of the road at the locus in quo; (c) the effect of the impact of the cars from which a possible excessive rate of speed could have been inferred by the jury.
The transcript shows that when plaintiff announced that no further testimony would be offered except in rebuttal, counsel for defendant moved the court to direct a verdict in behalf of the defendant on a number of grounds, and the court having signified its intention to sustain the motion of the defendant below and direct a verdict in his behalf, counsel for plaintiff moved the court to be permitted to take a non suit with bill of exceptions, which was by the trial court granted.
After an amendment of the transcript of the record herein having been allowed and approved by this Court, the cause is here for decision on the merits of the said appeal.
The lower court was about to sustain the motion of the defendant for a directed verdict and announced its intention so to do, when plaintiff was permitted to take a non suit with bill of exceptions. A verdict for the defendant should never be directed by the court unless it is clear that there is no evidence whatever adduced that would in law support a verdict for the plaintiff. If the evidence is conflicting, or will admit of different reasonable inferences, and if there is evidence tending prove the issue, it should be submitted to the jury as a question of fact to be determined by them, and not taken from the jury and passed upon by the court as a question of law. See Cameron, etc., Co. v. Law-Engle Co., 98 Fla. 920, 124 So. 814; McKinnon v. Johnson, 57 Fla. 120, 48 So. 910; Starks v. Sawyer, 56 Fla. 596, 47 So. 513; Florida Cent., etc., R. Co. v. Williams, 37 Fla. 406, 20 So. 558; Southern Exp. Co. v. Williamson, 66 Fla. 286, 63 So. 433, L.R.A.1916C, 1208.
The question for determination here is: Has the plaintiff adduced sufficient evidence to show actionable negligence on the part of the defendant?
The accident here occurred on Road No. 19, the Jackson Bluff Road, about one and one-half miles east of Captain Finley's. The place of the collision was a curve and slightly on a hill. D. L. Hood, Ulmer Moore and a Miss Sherman were riding in a Chevrolet car. The car was traveling in the direction of Tallahassee around 45 miles per hour when it collided with a CCC truck, and in so doing knocked the Chevrolet car around until it was headed north although it was traveling east at the time of the collision. The Chevrolet car was on the highway when the Dietrich car came around a curve and up the hill and collided with the Hood car. It is reasonable to assume that the defendant's car was traveling at a rather fast rate of speed as shown by the impact with the Hood car. Hood testified as follows:
On direct examination Ulmer Moore, the plaintiff, testified:
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