Postal Telegraph-cable Co. v. Scott

• Decision Date: 14 August 1918
• Citation: 79 So. 767,76 Fla. 336
• Parties: POSTAL TELEGRAPH-CABLE CO. v. SCOTT.
• Court: Florida Supreme Court

79 So. 767

76 Fla. 336

POSTAL TELEGRAPH-CABLE CO. v. SCOTT.

Florida Supreme Court

August 14, 1918

Rehearing Denied Oct. 31, 1918.

Error to Court of Record, Escambia County; Kirke Monroe, Judge.

Action by Samuel W. Scott against the Postal Telegraph-Cable Company. Judgment for plaintiff, and defendant brings error. Judgment affirmed, if remittitur of damages be entered otherwise, reversed.

Syllabus by the Court

SYLLABUS

The common-law rule that contributory negligence bars recovery is in force in this state; it never having been modified by statute in this class of cases.

Contributory negligence to bar recovery does not clearly appear in this case.

Where it clearly appears that damages awarded are excessive, a remittitur may be directed, in default of which the judgment will stand reversed.

COUNSEL E. C. Maxwell, of Pensacola, for plaintiff in error.

R. Pope Reese and John P. Stokes, all of Pensacola, for defendant in error.

OPINION

WHITFIELD J.

This writ of error was taken to a judgment awarding damages for personal injuries. The declaration alleges in effect that a messenger boy employed by the defendant company while 'engaged in calling for and delivering a certain telegraphic message for defendant, carelessly and negligently propelled and ran a certain bicycle with great force and violence at and against plaintiff, thereby' injuring him as alleged. Defendant pleaded not guilty and contributory negligence. The common-law rule that contributory negligence bars recovery is in force in this state, it never having been modified by statute in this class of cases. Stearns &amp Culver Lumber Co. v. Fowler, 58 Fla. 362, 50 So. 680; German-American Lumber Co. v. Hannah, 60 Fla. 70, 53 So. 516, 30 L. R. A. (N. S.) 882; Ingram-Dekle Lumber Co v. Geiger, 71 Fla. 390, 71 So. 552, Ann. Cas. 1918A, 971; Co-operative Sanitary Baking Co. v. Shields, 71 Fla. 110, 70 So. 934; Wauchula Mfg. & Timber Co. v. Jackson, 70 Fla. 596, 70 So. 599.

But contributory negligence does not clearly appear in this case. There is ample evidence to sustain the finding which in effect is that the defendant's employé was negligent as alleged and that the plaintiff did not proximately and appreciably contribute to the injury he complains of. There is evidence from which it may be found that the plaintiff had gotten perhaps a third or half way across the street or 18 or 20 feet from the sidewalk in crossing the street when he was struck by the bicycle, which was going at undue speed, when there was apparently nothing to cause the collision, if the rider had been in proper control of the wheel and exercised due care.

It does not appear, as against the finding of the jury that the plaintiff was careless. He testified that he looked before proceeding to cross the street, and in crossing, saw nothing to imperil his safety until the wheel was upon him; and there is other evidence...