Pensacola Electric Co. v. Bissett

• Decision Date: 04 March 1910
• Citation: 59 Fla. 360,52 So. 367
• Parties: PENSACOLA ELECTRIC CO. v. BISSETT et al. (two cases).
• Court: Florida Supreme Court

52 So. 367

59 Fla. 360

PENSACOLA ELECTRIC CO. v. BISSETT et al. (two cases).

Florida Supreme Court

March 4, 1910

Rehearing Denied May 18, 1910.

Headnotes Filed May 20, 1910.

In Banc. Error to Circuit Court, Escambia County; J. E. Wolfe Judge.

Consolidated actions by Elizabeth M. Bissett and husband, and by Richard Bissett, against the Pensacola Electric Company. Judgments for plaintiffs, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Although an expert witness may not be questioned, either upon his direct or cross examination, upon an hypothesis having no foundation in the evidence, yet it is not required that the hypothetical case put to him should be an exact reproduction of the evidence, or an accurate presentation of what has been testified to. Counsel may present to him any hypothetical case in accordance with any reasonable theory based upon the evidence; but, in the event that the jury should find that the facts upon which such hypothesis or theory of the case was based have not been proved, the answer of the expert necessarily falls with the hypothesis.

An expert witness who has given his opinion upon any question or hypothesis submitted to him may be further interrogated upon his cross-examination as to the reasons for such an opinion. And for this purpose it is within the discretion of the trial court to widen the range of such cross-examination, even so as to include matters not strictly pertinent to the issues in order to test the witness' means of knowledge, the extent of his information, memory, accuracy, or credibility and an appellate court will not interfere with the exercise of such discretion, unless a clear abuse thereof is made to appear.

Where an instruction, so far as it goes, states a correct proposition of law, but is defective because it fails to qualify or explain the proposition it lays down in accordance with the facts of the case, such defect is cured if subsequent instructions are giving containing the required qualifications or exceptions. It is not required that a single instruction should contain all the law relating to the particular subject treated therein.

In determining the correctness of charges and instructions, they should be considered as a whole, and if, as a whole, they are free from error, an assignment predicated on isolated paragraphs or portions, which, standing alone, might be misleading, must fail. In passing upon a single instruction or charge, it should be considered in connection with all the other instructions and charges bearing on the same subject and if, when thus considered, the law appears to have been fairly presented to the jury, an assignment predicated upon the giving of such instruction must fail, unless under all the peculiar circumstances of the case the court should be of the opinion that such instruction or charge was calculated to confuse, mislead, or prejudice the jury.

In determining the correctness of charges and instructions, they should be considered as a whole; but, where a special charge or instruction in itself announces a patently erroneous proposition of law, it must affirmatively and clearly appear that the presumptive harm caused thereby has been entirely removed, or the judgment should be reversed.

In an action brought by a passenger against a railroad or electric company to recover damages for personal injuries alleged to have been caused by the negligence of such company, if the defendant conceives that the charges and instructions already given by the court are not sufficiently full or specific upon any point, it should prepare such additional instructions as it may deem proper and request that they be given, and where such additional instructions are given by the court, and they cure and supply the supposed or real defect, error, or ommission in the previous charges or instructions, then the defendant has no ground for complaint.

An appellate court should not reverse a judgment, however erroneously an isolated point may have been ruled by the judge below, when it is clearly apparent that the party complaining was in no way injured by such improper ruling.

Section 3148 of the General Statutes of 1906 creates the presumption that a person injured by the operation of a railroad was thus injured through the negligence of such road, and thereby casts upon such company the burden of showing that its agents exercised all ordinary and reasonable care and diligence. In an action brought by a passenger against such company seeking to recover damages for personal injuries alleged to have been caused by the negligence of such defendant, it is primarily for the jury to determine from the evidence, under appropriate instructions from the trial court, whether or not the defendant company has met and relieved itself of such burden so cast upon it by the statute.

In passing upon an assignment based upon the ruling of the trial court in denying a motion for a new trial, which questions the sufficiency of the evidence to sustain the verdict, the guiding principle for an appellate court is not what it may think the jury ought to have done, or what such court may think it would have done had it been sitting as a jury in the case, but whether as reasonable men the jury could have found such verdict from the evidence adduced. If this question can be answered in the affirmative, the action of the trial court upon such motion should not be disturbed.

When a jury has rendered its decision through its verdict, it should be regarded as settling all controverted questions of fact submitted for determination, unless it clearly appears that the jurors in arriving at such verdict must have been improperly influenced by considerations outside the evidence. So the trial judge is given a supervisory power over verdicts and the right to set them aside and grant new trials. In an action, where the trial judge has exercised such supervisory power, being of the opinion that the damages allowed were excessive, and directed the filing of remittiturs but upon other points refusing to interfere with the verdicts, an appellate court will do likewise, unless the amounts of such verdicts, after the filing of the remittiturs, are still such as to shock its judicial conscience.

COUNSEL Blount & Blount & Carter, for plaintiff in error.

Jones & Pasco and E. T. Davis, for defendants in error.

OPINION

SHACKLEFORD J.

Two actions were brought against the plaintiff in error, one by Elizabeth M. Bissett, joined by her husband, Richard Bissett, and the other by Richard Bissett, seeking to recover damages for personal injuries received by Elizabeth M. Bissett, alleged to have been caused by the negligence of the plaintiff in error. The declarations in the two actions are practically identical, except, as to the allegations of damages, the husband in the action brought by him as sole plaintiff seeking to recover for the loss of the society and services of his wife and for expenses incurred by him for medical attention, medicines, nursing, etc., resulting from the injuries inflicted upon his wife. No point is made on the pleadings, so there is no occasion to set them forth. Each declaration contains four counts, to which the defendant filed a plea of not guilty. Suffice it to say that it is alleged that the plaintiff Elizabeth M. Bissett was a passenger upon one of the defendant's cars; the allegations or specifications as to the negligence of the defendant being, in the first count, 'that the employés of said defendant did then and there run and operate said car in such a negligent, careless, and reckless manner and at such high rate of speed,' and that the motorman or brakeman in charge of defendant's car did 'then and there operate and handle said machinery of said car in such a careless and negligent manner'; in the second count, 'by reason of defective machinery which the defendant had used and had thereto attached for the purpose of manipulating and operating said car'; in the third, in 'not providing safe appliances and cars for the plaintiff to be transported on'; and, in the fourth, 'in the operation of its said car aforesaid and in failing to fit the same with proper and safe appliances and keep them in a reasonable condition of repair.'

The two actions were tried together before a jury, but separate verdicts were rendered; the amount in the first action being for $7,663, with interest from the date of the institution thereof, and in the second action for $3,574, with like interest. In passing upon the motion for a new trial filed in each action, the court directed remittiturs, in the first action of $2,263, and in the second of $353, and overruled the motions upon the entry of such remittiturs. Relief is sought here from each judgment, upon separate writs of error, though the two cases are argued and submitted together, by agreement of counsel, upon one bill of exceptions. Quite a number of errors are assigned, including the one based upon the overruling of the motion for a new trial, which contained 34 grounds; but all of the assignments are not argued. We shall consider such of those argued before us as we deem necessary for a proper disposition of the two cases.

The first assignments argued are the second and twenty-fifth which are treated together. We find that the defendant had introduced as one of its expert witnesses Dr. Louis De M. Blocker, who, after testifying as to his qualifications and experience as a physician, had testified at some length as to having been called to examine and treat the injured plaintiff, either the very day on which the accident occurred or the next day, and the result of his examination, the condition in which he found her, and the extent of her injuries. We do not deem it necessary to...