Murden v. Miami Poultry & Egg Co.

• Decision Date: 07 February 1934
• Parties: MURDEN v. MIAMI POULTRY & EGG CO.
• Court: Florida Supreme Court

152 So. 714

113 Fla. 870

MURDEN v. MIAMI POULTRY & EGG CO.

Florida Supreme Court

February 7, 1934

En Banc.

Error to Circuit Court, Brevard County; A. Z. Adkins, Judge.

Action by Mrs. La Mira Murden, a widow, against the Miami Poultry &amp Egg Company, a corporation. Judgment for defendant, and plaintiff brings error.

Affirmed.

COUNSEL Dickinson & Dickinson, of Orlando, Crofton &amp Wilson, of Titusville, and Akerman & Gray, of Orlando, for plaintiff in error.

George G. Herring, of Sanford, for defendant in error.

OPINION

BUFORD Justice.

In this case the assignments of error and the briefs of the plaintiff in error present a number of questions which this court is invited to consider, but we deem it unnecessary to discuss these questions because of the factual condition which is disclosed by the record.

The suit was by the widow of a gentleman who was killed as the result of a Pierce-Arrow automobile coming into collision with the rear end of a Ford truck on Dixie Highway in the early morning before daylight. The driver of the automobile was a witness for plaintiff, and the driver of the truck was a witness for the defendant. There were numerous other witnesses.

The plaintiff not only failed to sustain by proof the allegations of negligence contained in the declaration, but the preponderance of evidence shows that the defendant, either by itself, its agents, or its servants, was not guilty of any act of negligence which was the proximate cause of the death of plaintiff's husband.

Two charges given by the court are made the subject of the assignments of error. The first charge complained of was in the following language: 'THE COURT CHARGES THE JURY THAT IF YOU Are SatiSfied from a preponderance of the evidence that L. H. Reynolds, the driver of the automobile, and A. J. Murden, (the deceased) were not engaged in a joint or common enterprise at the time of the collision of the automobile with the defendant's truck nevertheless, it was the duty of the decedent, A. J. Murden to use ordinary care to warn the driver of the automobile, L. H. Reynolds, of any danger or threatened danger of which the said A. J. Murden was aware, or of which he should in the exercise of ordinary care, have been aware.' And the other was in the following language: 'The Court charges the jury that if your are satisfied from a preponderance of the testimony that at the time of the collision and prior thereto, A. J. Murden, in the exercise of ordinary care should have known that L. H. Reynolds was driving the automobile of Marshall Motors, Inc., (the automobile in which deceased was riding) at an excessive rate of speed, then it was the duty of the decedent to warn the driver and to endeavor to persuade him from such negligent conduct, and if the decedent failed to so warn the said driver and such failure was the sole proximate cause of the death of the decedent, then the plaintiff is not entitled to recover for the death of her husband.'

The first charge was erroneous because there was nothing in the record to show that there was any condition or circumstance which fixed a duty upon the deceased to warn the driver of the automobile of any danger. From all that appears in the record the deceased may have seen the truck ahead and had every right to assume that the driver of the automobile in which he was riding would safely pass the truck, observing in so doing the laws and rules of the highway.

The second charge was erroneous for the like reason. That is, that there was nothing in the record upon which to base this charge. This charge did not attempt to visit upon the decedent the negligence of the driver of the automobile, but it sought to penalize the decedent for his own negligence of which there was no proof in the record.

It appears to be a well-settled rule that in the absence of evidence to the contrary the law presumes that one injured or killed under circumstances of this sort did everything a reasonably prudent man would have done under the circumstances for the protection of his own safety. See Carpenter et al. v. Atchison, T. & S. F. Ry. Co., 51 Cal.App. 60, 195 P. 1073; Baltimore & P. R. Co. v. Landrigan, 191 U.S. 461, 24 S.Ct. 137, 48 L.Ed. 262; Harris v. Fla. Public Service Co., 100 Fla. 90, 129 So. 333; Southern Express Co. v. Williamson, 66 Fla. 286, 63 So. 433, L. R. A. 1916C, 1208.

In Florida Motor Lines, Inc., v. Hill, 106 Fla. 33, 137 So. 169, 143 So. 261, this court said: 'Ordinarily, contributory negligence on the part of the driver of a motor vehicle will not be imputed to a guest or invitee if he relies on the skill of the driver and does not attempt to impose his will on the driver to see that the machine is properly propelled.'

It has also been repeatedly held that judges are not authorized or required to give charges or instruction to juries on abstract questions of law not pertinent to the case before the court and having no relation thereto. See Whitner v. Hamlin, 12 Fla. 18; Mullikin v. Harrison et al., 53 Fla. 255, 44 So. 426; S. A. L. Ry. Co. v. Royal Palm Soap. Co., 80 Fla. 800, 86 So. 835.

In the case of Miller, Administrator, etc. v. Union Pacific R. R. Co., 54 S.Ct. 172, 173, 78 L.Ed. 285, the Supreme Court of the United States, in an opinion handed down December 4, 1933, said:

'Although it was at one time ruled in England--Thorogood v. Bryan, 8 C. B. 115 (1849)--that the negligence of the driver of a vehicle is imputed to a passenger, that doctrine, much criticised and finally abandoned in England (The Bernina, 12 Pro. Div. 58) was never generally accepted in this country. Followed by a few state decisions, it was rejected by the great weight of American authority and, after full consideration, distinctly...