Nott v. Baughman
| Decision Date | 01 November 1961 |
| Docket Number | No. 2274,2274 |
| Court | Florida District Court of Appeals |
| Parties | Perry A. NOTT and John Stephen Nott, d/b/a Perry A. Nott & Son, Appellants, v. Amos BAUGHMAN, Appellee. |
Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.
Mellor & Watson, Fort Myers, for appellee.
The appellants, as defendants in a negligence action, obtained a jury verdict of non-liability. They now appeal the order of the trial court setting aside the verdict and granting the plaintiff-appellee a new trial. The trial court was of the opinion that the admission in evidence of a certain time-exposure photograph offered by the defendants was seriously prejudicial to the plaintiff. The parties will be referred to according to their designation in the trial court.
Plaintiff Amos Baughman was a skilled dairy milker who had been working for the defendant dairy operators for approximately a year when he was injured on the job. The injury occurred at four o'clock A.M. on August 14, 1959 while the plaintiff was performing his early morning chores. He was milking six cows concurrently by machine when a cow outside the milking shed refused to enter. The plaintiff left the machine to encourage the cow along he ramp into the milking shed. While so engaged he heard a noise caused by the milking machine becoming detached from one of the cows. He hurried back toward the shed and slipped on a manure deposit, fell upon a pile of rocks and injured his lower back.
The plaintiff alleged that the defendants were negligent in not furnishing sufficient co-workers, in failing to provide a reasonably safe place to work with adequate lighting, and in permitting the pile of rocks to remain in the area. The defendants denied negligence on their part and asserted the affirmative defenses of assumption of risk and contributory negligence. The case proceeded to trial and much evidence was introduced. Motions for directed verdict at the conclusion of all the evidence were denied.
Several photographs were received in evidence depicting the milking shed, the ramp leading to the shed, and the holding pen where the cows awaited milking. The court overruled the plaintiff's objection to defendants' Exhibit 4, a time-exposure photograph admitted on the testmony of the photographer who took the picture, which was one of several depicting he area where the plaintiff fell. The particular picture was taken nine months after the accident at about eight o'clock at night. The plaintiff contended that the picture in question was not shown to have been taken under conditions similar to those existing at the time of the accident and that it erroneously showed the area where he fell to be well lighted. The plaintiff introduced six photographs and the defendants introduced four photographs representing various views of this same area.
The jury returned a verdict for the defendants. The plaintiff thereupon filed a motion for a new trial and appended several time exposure photographs of another scene taken at another time, the purpose being to point up the excessive illumination caused by the time-exposure process. The motion also renewed the plaintiff's previous objections to Exhibit 4 as interposed at the trial. The court granted a new trial on the ground that a time exposure photograph 'should never be admitted to show the intensity of light and that the admission of such photograph gave a false impression to the jury on a material fact'. In so ruling the court did not otherwise comment on the evidence as to its weight and sufficiency, and in this connection we note that '* * * no other grounds than those specified by the trial judge, as a basis for the order granting the new trial, shall be considered as arguable upon said appeal'. Section 59.07(4), F.S.A.
The defendants, seeking reversal on appeal, insist that the...
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Sandford v. Firestone Tire & Rubber Co.
...new trial, therefore, would be pointless where nothing could be accomplished except to have another jury review the case. Nott v. Baughman, Fla.App.1961, 133 So.2d 767; Redwing Carriers v. Helwig, Fla.App.1959, 108 So.2d The judgment appealed is reversed and the cause remanded with directio......