Pillet v. Ershick

• Decision Date: 08 March 1930
• Parties: PILLET v. ERSHICK.
• Court: Florida Supreme Court

126 So. 784

99 Fla. 483

PILLET v. ERSHICK.

Florida Supreme Court, Division A.

March 8, 1930

Error to Circuit Court, Pinellas County; John U. Bird, Judge.

Action by J. D. Ershick against Alexis Pillet. Judgment for plaintiff, and defendant brings error.

Affirmed.

Syllabus by theCourt.

COUNSEL

Watson & Saussy, of Tampa, for plaintiff in error.

James Booth, of St. Petersburg, for defendant in error.

OPINION

ELLIS J.

J. D Ershick on February 27, 1926, at about 8:30 o'clock in the morning, was walking on the east side of Third street at the intersection of that street and Central avenue in the city of St. Petersburg. As he was crossing the avenue, he observed two automobiles in the north side of Central avenue which were going west on the avenue but had stopped at the Third street line waiting for the traffic signal light before proceeding on their way. As Ershick came to the center of the avenue, one of the automobiles, farthest away from the street line, turned out as if to pass the machine in front. Ershick, thinking that the driver of the automobile, whose name was Collins, intended to proceed on his way westward, stepped back and was struck by the defendant's automobile, which was traveling eastward on Central avenue, and sustained serious injuries as a result of the impact upon him of the defendant's machine.

Ershick brought an action in the circuit court for Pinellas county against Alexis Pillet, the owner of the automobile which caused the injury, and recovered a judgment in the sum of $7,500. To that judgment the defendant, Pillet, took a writ of error.

The action rests upon the alleged negligence of the defendant in the operation of his automobile at the time and place where the accident occurred. A demurrer to the amended declaration was overruled. The assignment of error based on that ruling will be discussed later. There was included in a motion which is referred to as a 'motion in arrest of judgment and a motion for a judgment notwithstanding the verdict,' a paragraph challenging the correctness of the court's order in overruling the demurrer.

In briefing the case counsel for plaintiff in error groups the assignments of error. in the fifth group, which includes the sixteenth, eighteenth, and nineteenth assignments, the point is referred to but not discussed. In that grouping of the assignments it is asserted without argument that the court should have granted the motion in arrest of judgment, should not have entered the final judgment, but should have entered a judgment notwithstanding the verdict in favor of the defendant. The last proposition rests upon the assertion that according to the evidence as developed in the plaintiff's case his injuries were attributable either to his own neglect or that of some person other than the defendant.

None of the assignments in that grouping are of any value in our view, because the declaration not wholly failing to state a cause of action is not amenable to attack by a motion in arrest of judgment.

Because of the doctrine of aider, waiver, and amendments, a judgment will not be arrested for a defect that may have been fatal on demurrer. On a motion in arrest of judgment the intendments favor the pleader instead of being taken against him as on a demurrer, so if the material facts be fairly inferable from the facts stated judgment will not be arrested. 2 Stand Ency. Proc. 1013, and numerous authorities cited. See also Huling v. Florida Savings Bank, 19 Fla. 695, which discusses the doctrine that the absence of a similiter to a plea of replication is not ground for an arrest of judgment. The doctrine is followed that where the parties go to trial it is presumed that they understood that those material facts necessary to support the cause were involved which a more accurate allegation of them in the declaration would have made clearer.

A judgment in favor of the defendant notwithstanding the verdict would have been improper, not only because there was evidence to support the plaintiff's declaration, but because a judgment of that kind is applicable, if at all in this state, where a plea setting up a meritorious defense has been fully sustained and not met by the plaintiff, or where the declaration fails to state a cause of action but a verdict is nevertheless found in favor of the plaintiff. 14 Stand. Ency. Proc. 959; 33 Corpus Juris, 1181.

The common-law rule that a motion for such a judgment cannot be interposed by a defendant obtains in many jurisdictions and has not been abolished by statute nor relaxed by decisions of this court except in so far as section 4615, Comp. Gen. Laws 1927, as construed by this court, may be considered an abandonment or relaxation of the rule.

The defendant pleaded the general issue, and two other pleas of which the third was in effect a plea of the general issue because it was merely a denial of the wrong and injury alleged in the declaration. The second plea was one of contributory negligence, in that it averred that the defendant negligently put himself in the way of the defendant's automobile while trying to avoid another machine approaching from an opposite direction.

Our examination of the evidence convinces us that it failed to support that plea. There was ample evidence to show that when the plaintiff was struck he was on the street car track, which is laid in the center of Central avenue. If while in the so-called safety zone for pedestrians he stepped back upon the street car track against the approaching automobile of the defendant, the latter's machine was in a position where it could not be said that the plaintiff was negligent in not observing it.

It is a well-established rule that the driver of a vehicle at a road crossing is bound to notice pedestrians who are exercising the right of crossing the highway and should take reasonable care not to injure them. See Birkett v. Knickerbocker Ice Co., 110 N.Y. 504, 18 N.E. 108; Anderson v. Wood, 264 Pa. 98, 107 A. 658.

In Wadley v. Schwartz Brothers Express Co., 211 Ill.App. 44, it was held that a pedestrian crossing diagonally at a highway intersection who was injured by a team driven on the wrong side of the road at a lively rate may recover damages from the driver of the team for the injury sustained. The degree of care required of the driver of vehicles at a street crossing is greater than required of those operating a railroad train at a crossing, as vehicles at a road crossing are driven at less speed than trains are driven and are more under the immediate control of the driver See Goldblatt v. Brocklebank, 166 Ill.App. 315, text 318; Evans v. Adams Express Co., 122Ind. 362, 23 N.E. 1039, 7 L. R. A. 678; Eaton v. Cripps & Bros., 94 Iowa, 176, 62 N.W. 687; Purtell v. Jordan, 156 Mass. 573, 31 N.E. 652.

The rule applies with particular appropriateness to cities where the use of streets and street crossings by vehicles and pedestrians is so great. And evidence that the act causing the injury was in violation of a street ordinance is admissible to show negligence as well as bearing upon the contributory negligence of the plaintiff. See Sandifer v. Lynn, 52 Mo.App. 533; United States Brewing Co. v. Stoltenberg, 211 Ill. 531, 71 N.E. 1081; Healy v. Johnson, 127 Iowa, 221, 103 N.W. 92.

In some jurisdictions it is held that the violation of a street ordinance by a person driving a vehicle makes out a prima facie case of negligence where injury results to another from such act. See Robinson v. Simpson, 8 Houst. (Del.) 398, 32 A. 287.

In the case of Mooney v. Kinder, 271 Pa. 485, 115 A. 826, 827, a pedestrian was injured while crossing a street by a truck driven by the owner. Mr. Justice Schaffer in speaking for the court said: 'There is a higher degree of care due by the drivers of motor vehicles at all street crossings than at other points in the highway, but at such crossings as this, because of the perils to pedestrians using them, under modern traffic conditions, the duty of care which is cast upon the driver of such a vehicle as that which defendant was driving is of the highest degree.' See also Huddy on Automobiles (8th Ed.)§ 341; Berry on Automobiles, § 218 (6th Ed.).

There is no need to discuss the evidence. In our view of the case, as made by the pleadings and the evidence, the jury was fully justified in concluding that the plaintiff was injured at the place alleged by the negligence of the defendant in the operation of the automobile which caused the injury; that the damages sustained were proven and the amount allowed not excessive.

There is much conflict of evidence as to whether the plaintiff was struck by the automobile approaching from the east or the one driven by the defendant; also as to whether the plaintiff in attempting to avoid the automobile approaching from the east stepped back and against the approaching machine of the defendant. It was the jury's province to determine these conflicts in the testimony and as there was ample evidence to support the finding that the plaintiff was injured by the careless driving of the defendant's automobile, this court, following the long-established rule in such cases, will not disturb that finding. It does not appear that the jury, as reasonable men, could not have rendered the verdict they did. See Pensacola Electric Co. v. Bissett, 59 Fla. 360, 52 So. 367; Consolidated Naval Stores Co. v. McNeill, 60 Fla. 38, 53 So. 843; George E. Wood Lumber Co. v. Gipson, 63 Fla. 316, 58 So. 364; Tampa & J. R. Co. v. Crawford, 67 Fla. 77, 64 So. 437; Greer v. Illgen, 79 Fla. 383, 84 So. 156; Alexander v. Rhine, 78 Fla. 313, 82 So. 831.

The facts in the case of Rubio v. Armour & Co., 94 Fla 761, 116 So. 40, 41, are not analogous to those in the case at bar. In the Rubio Case the driver of the...