Myrick v. Griffin

• Decision Date: 14 February 1941
• Citation: 146 Fla. 148,200 So. 383
• Court: Florida Supreme Court
• Parties: MYRICK v. GRIFFIN.

200 So. 383

146 Fla. 148

MYRICK v. GRIFFIN.

Florida Supreme Court, Division A.

February 14, 1941

Error to Court of Record, Escambia County; R. Pope Reese, Judge.

Action by Nettie L. Griffin against John Myrick for injuries sustained in automobile accident. Judgment for plaintiff, and defendant brings error.

Affirmed.

COUNSEL Ernest E. Mason, of Pensacola, for plaintiff in error.

Coe &amp McLane, of Pensacola, for defendant in error.

OPINION

BUFORD Justice.

On writ of error we review judgment in favor of plaintiff for damages alleged to have been occasioned by the negligent operation of an automobile truck owned by plaintiff in error.

The accident occurred in the State of Alabama just west of Escambia County, Florida, on a bridge which crosses the Perdido River.

Plaintiff in error poses four questions for our consideration, as follows:

'Question No. 1. Where two motor vehicles are traveling in the same direction upon a narrow road, consisting of a series of bridges and fills, guarded by guard rails and barriers where the bridges are narrower than the remainder of the roadway, and where there are numerous curves which obstruct the view of the driver of a rear vehicle, is it not the duty of the driver of the rear vehicle to exercise a greater degree of care in attempting to pass said forward vehicle than would be required of the driver of such rear vehicle under ordinary road conditions and circumstances and was it not error on the part of the trial Court to refuse to charge the Jury to such effect upon request by the defendant, and should not a verdict for the plaintiff, under such circumstances, be set aside and a new trial granted?'

'Question No. 2. Where the plaintiff was riding as a guest of the driver of a rear vehicle which ran into a bridge abutment in attempting to pass a forward vehicle, and the evidence discloses that the driver of the rear vehicle in which the plaintiff was riding made several unsuccessful attempts to pass the forward vehicle on a narrow road consisting of bridges and fills guarded by guard rails, under such circumstances as would have caused a reasonably prudent person riding as such guest to protest the manner of operation of such vehicle by the driver thereof, was not the plaintiff guilty of contributory negligence such as to bar her right of recovery against the owner of the forward vehicle by failing to protest against the manner of operation of the automobile in which she was riding, and did not the trial Court err in refusing to charge the Jury to such effect?'

'Question No. 3. Where the defendant files a special plea setting up the circumstances under which the driver of the automobile in which the plaintiff was riding as a guest attempted to pass the forward vehicle owned by the defendant, and which said plea was not a plea alleging contributory negligence on the part of the plaintiff, did not the trial Court err in charging the Jury that the burden was upon the defendant to prove such plea by a preponderance of the evidence?'

'Question No. 4. Where the evidence discloses that the defendant's motor truck was being operated upon a narrow road consisting of numerous bridges and fills and upon which there were numerous curves, which said road was guarded by guard rails, does the law require that the driver of such motor truck keep his eyes glued on the rear-view mirror to see if anybody behind him desired to pass, and was it not the duty of the driver of the vehicle approaching from the rear desiring to pass such motor truck to be reasonably assured that it could pass such motor truck in safety, before attempting to pass the same, and did not the trial Court err in charging the Jury that it was the duty of the driver of the defendant's motor truck, under such circumstances, to keep his eyes glued on such rear-view mirror, and that the defendant had no right to charge contributory negligence to the plaintiff under such circumstances?'

There are some conflicts in the evidence but there is ample evidence to support the finding of the following stated conditions: That plaintiff in the court below was riding as a guest in the automobile with one Doolan, who was driving his own car and over which plaintiff had no control. As Doolan approached the Perdido River and low lands on the west side thereof the road consisted of a series of fills and bridges. The bridge across the main stream was a concrete bridge. On the road ahead of Doolan there was traveling the truck and trailer owned by the defendant; Doolan, approaching near the rear of this truck, blew his horn as a signal that he wished to pass; the truck failed to give way for passage. The second time Doolan blew his horn as a signal that he wished to pass and still the truck maintained a position on the highway which blocked the passage of Doolan. As both vehicles got near the west end of the concrete bridge Doolan so operated his horn as to produce a louder signal than he had theretofore given. Then the driver of the truck turned on to the right hand side of the road, apparently giving Doolan room to pass, but as Doolan speeded up his automobile and was about to bring the front of his car even with the rear of the truck, the truck was caused to turn to the left, blocking passage, and thereby made it necessary for Doolan either to strike the truck or the end of the concrete bridge. Doolan struck the bridge and injured himself and the plaintiff. Plaintiff sued and recovered judgment which we now review.

We have considered the questions presented and our conclusion is that insofar as the refusal to give the charges constituting the basis of plaintiff in error's questions numbered 1, 2 and 3, the record shows that the...