Myers v. Atlantic Coast Line R. Co.
| Decision Date | 11 April 1956 |
| Citation | 86 So.2d 792 |
| Parties | Randolph P. MYERS, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, and W. R. Davis,Appellees. Randolph P. MYERS, as Administrator of the Estate of Susan A. Myers, deceased, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, and W. R. Davis,Appellees. Harold B. BENDER, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, and W. R. Davis,Appellees. |
| Court | Florida Supreme Court |
Wm. McHardy Berson of Sanders, McEwan & Berson, Orlando, for appellants.
LeRoy B. Giles, Edward K. Goethe and David W. Hedrick, Orlando, for appellees.
These cases were the consummation of a railroad crossing accident within the corporate limits of Winter Park, Florida. Marsha C. Bender and Susan A. Myers, seniors in Edgewater High Schood, Orlando, were traveling in a Jeepster convertible sedan over Minnesota Avenue, their objective to visit friends at Winter Park High Schood, about four miles distant, during the noon recess. At the intersection of Minnesota Avenue and the Atlantic Coast Line Railroad, they collided with the Champion, one of the fast passenger trains of the railroad. The Jeepster was demolished and both girls were rendered unconscious; Susan A. Myers died in a few hours without regaining consciousness and Marsha C. Bender regained consciousness after several hours but received severe injuries.
Randolph P. Myers, father of Susan A. Myers, brought suit against Atlantic Coast Line Railroad Company and W. R. Davis, the engineer, for the wrongful death of his daughter and recovered a judgment for $47,500. He brought a second suit as administrator of the estate of Susan A. Myers and recovered a judgment for $5,300 against the Atlantic Coast Line Railroad Company, being the present value of her estate, had she lived her normal life expectancy of fifty years. Harold B. Bender brought suit against Atlantic Coast Line Railroad Company and W. R. Davis to recover damages for the value of his Jeepster, including doctors, hospital and other bills incurred by his daughter, Marsha C. Bender, as result of the accident and recovered a judgment of $2,000.
The three cases were tried together by order of the court and separate verdicts were entered in each case. At the conclusion of the trial, the court granted motion on the part of defendants for a new trial in each case pursuant to sec. 59.07(4), Florida Statutes, F.S.A., his order stating:
These appeals are from the orders granting new trial in each case. Appellees filed cross-assignments of error in each case which were identical except that cross-assignment No. 9 was included only in the two Myers cases and not in the Harold B. Bender case. By stipulation of counsel and order of the court, a single transcript has been filed for all cases. Since it is agreed that the questions in each case are identical, a single brief for all cases has been filed. We approve this practice.
Appellants state their first question as follows:
'Where trial court, in order granting a new trial, finds that there is 'evidence of negligence of the defendants presenting a jury question' concerning 'the conflict in the evidence respecting giving of appropriate warning of approach of defendant's train,' and that the evidence on this question is 'legally sufficient to present a jury question,' but that it so preponderates in defendant's favor that the court is of the view that 'the manifest weight of the evidence-establishes the negligence of the driver of the vehicle as the sole proximate cause of the collision,' and where there was no finding that the jury was misled, motivated by prejudice, passion or any other improper cause, and no finding that the verdict was contrary to the probative force of the evidence or the justice of the cause, may the trial court grant a new trial?'
The orders denying motion for directed verdict and granting a new trial in each case are the same as the order quoted above. An examination of the first question shows that appellants challenge that part of the order of reversal reading,
Appellants contend that the quoted part of the order granting a new trial should be reversed because in finding that the 'verdict was contrary to the manifest weight of the evidence,' said order should have further found that the 'jury was misled, motivated by prejudice, passion or any other improper cause,' or some equivalent finding. The statute, sec. 59.07(4), Florida Statutes, F.S.A., provides in substance that in every case where motion for new trial is granted, the trial court shall indicate...
To continue reading
Request your trial
-
Lerner v. Seaboard Coast Line R. Co.
...it to a stop. See 43 Fla.Jur.2d §§ 114-125. Thompson had a duty to stop, look and listen at the crossing. See Myers v. Atlantic Coast Line R.R. Co., 86 So.2d 792, 796 (Fla.1956). Thompson was aware of the signal devices at the crossing, Thompson Dep. at 9-10, 13-14, 27-28, but had no recoll......
-
Bennett v. Jacksonville Expressway Authority, 30990
...outside the record, Martin v. Stone, supra [Fla., 51 So.2d 33], Turner v. Frey, supra [Fla., 81 So.2d 721, 722], Myers v. Atlantic Coast Line Railroad Co., Fla., 86 So.2d 792; Florida Publishing Co. v. Copeland, Fla., 89 So.2d 18. 'Inasmuch as such motions are granted in the exercise of a s......
-
Florida East Coast Ry. Co. v. Griffin
...for new trial. Cf. Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla.1981); Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Myers v. Atlantic Coast Line R.R. Co., 86 So.2d 792 (Fla.1956); Bullard v. Canale, 260 So.2d 237 (Fla. 4th DCA 1972); Department of Corrections v. Romero, 524 So.2d 1032 (Fla. 5......
-
Hodge v. Jacksonville Terminal Co., 38810
...outside the record, Martin v. Stone, supra (Fla., 51 So.2d 33); Turner v. Frey, supra (Fla., 81 So.2d 721, 722); Myers v. Atlantic Coast Line Railroad Co., Fla., 86 So.2d 792; Florida Publishing Co. v. Copeland, Fla., 89 So.2d 18.'Inasmuch as such motions are granted in the exercise of a so......