Motor Transit Co. v. Driver

CourtUnited States State Supreme Court of Florida
Citation162 So. 883,120 Fla. 293
Decision Date03 June 1935
PartiesMOTOR TRANSIT CO. v. DRIVER.

Rehearing Denied Sept. 2, 1935.

En Banc.

Error to Circuit Court, Duval County; Elwyn Thomas, Judge.

Action by Ethel Driver against the Motor Transit Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

ELLIS P.J., dissenting.

On Petition for Rehearing.

COUNSEL

Doggett, McCollum, Howell & Doggett, of Jacksonville, for plaintiff in error.

Mabry A. Carlton and Paul Ritter, both of Jacksonville, for defendant in error.

OPINION

PER CURIAM.

In this case a majority of the court are of the opinion that the judgment to be rendered in this case on writ of error is within the rule of Jacksonville Traction Co. v Greene, 113 Fla. 316, 151 So. 523, and that upon the authority of that decision the judgment in favor of plaintiff below as rendered in this case should be affirmed. The fact that this court sitting as jurors might have decided the case otherwise on the facts is not deemed sufficient to warrant reversal where the verdict found is not clearly against the manifest weight of the evidence.

Affirmed.

WHITFIELD C.J., and TERRELL, BROWN, BUFORD, and DAVIS, JJ., concur.

DISSENTING

ELLIS Presiding Justice (dissenting).

A writ of error was taken to a judgment of the circuit court for Duval county against the Motor Transit Company in an action by Ethel Driver for damages for personal injuries.

The declaration, which was filed in August, 1933, alleged that Ethel Driver was a passenger on one of the street cars of the defendant corporation; that at the intersection of certain streets the street car was stopped to permit passengers to alight from the car; that the plaintiff approached the door of exit for the purpose of leaving the car and alighting therefrom at that point; that the defendant, through its agent and servant, 'the motorman then and there operating said street car negligently and carelessly closed the door and raised the step, provided by the defendant under said door for the safety of passengers in leaving said street car, with force and violence, and carelessly and negligently started said street car while the plaintiff, Ethel Driver, was in the act of leaving said car, and about to place her foot on said step.'

It is alleged that as a result of the negligence alleged the plaintiff was thrown from the street car to the pavement and sustained personal injuries for which she sought compensation in the sum of $10,000.

The parties went to trial on the plea of not guilty. There was a verdict for the plaintiff in the sum of $1,500. Judgment was entered for that amount and the defendant seeks a reversal on writ of error. A motion for a new trial was denied.

The question presented is the sufficiency of the evidence to support the verdict which as to the alleged negligent act of the defendant rests solely upon the uncorroborated testimony of the plaintiff which is refuted by the testimony of four witnesses to the transaction, as well as the inferences of fact to be drawn from the operation of the mechanical device provided for the 'safety of passengers in leaving said street car.'

The brief of plaintiff in error presents also the question whether this court should not after examining the record give the judgment which the circuit court should have given as provided in section 4637, C. G. L. 1927, in the event this court decides that the evidence was insufficient to support the verdict.

Construing the allegation of the negligent act, upon which the plaintiff sought to recover, most favorably to the plaintiff, it consisted of two independent but coordinated acts on defendant's part, namely, raising the step and starting the car while the plaintiff was in the act of descending from the car to the street. At the time of the accident the plaintiff weighed about one hundred and seventy-five pounds. The mechanism which regulates the opening and closing of the door and lowering and raising the steps upon which a passenger descends to the street was in good condition and working smoothly. The process of opening the door for the exit of a passenger puts in operation the mechanism which controls the lowering of the steps. The two operations are coordinate. A passenger desiring to leave the car passes through the doorway and steps upon the step which has been lowered to facilitate a convenient descent from the car.

There is no evidence in the record as to whether the mechanism could be operated by the motorman so as to raise the step while a person weighing one hundred and seventy-five pounds was standing upon it, although it may be possible for it to be done as the weight of the person is shifted to the ground and one foot being removed from the step. A raising of the step at that particular instant might trip the passenger and cause him to fall, but the declaration does not allege that the accident occurred in that way. It is alleged that the plaintiff was 'in the act of leaving said car, and about to place her foot on said step,' when the motorman 'carelessly and negligently started said street car.'

Now if that allegation is true, then the passenger was within the car or standing in the doorway when the motorman started the car, for she had not yet placed her foot upon the step when the car was...

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3 cases
  • Murphy v. Kroger Grocery & Baking Co.
    • United States
    • Missouri Supreme Court
    • 6 Abril 1943
    ... ... J. Misc. 229, 149 A ... 337; City of Ozark v. Byrd, 225 Ala. 332, 143 So ... 168; Motor Transport Co. v. Driver, 120 Fla. 293, ... 162 So. 883; Peek v. Arnett, 233 Ky. 756, 26 S.W.2d ... Haven v. Missouri R. Co., 155 Mo. 216, 55 S.W. 1035; ... McCarty v. St. Louis Transit Co., 192 Mo. 396, 91 ... S.W. 132; St. Louis v. Franklin, 26 S.W.2d 954; ... Sofian v ... ...
  • Penn Mut. Life Ins. Co. v. Roberts
    • United States
    • Florida Supreme Court
    • 8 Julio 1935
  • Winter Haven Fruit Sales Corp. v. De Vane
    • United States
    • Florida Supreme Court
    • 6 Julio 1935
    ... ... Jacksonville Traction Co. v. Greene, 113 Fla. 316, ... 151 So. 523; Motor Transit Co. v. Driver, (Fla.) 162 ... So. 883 (decided June 3, 1935, at present term) ... ...

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