Railway Exp. Agency v. Brabham

• Citation: 62 So.2d 713
• Parties: RAILWAY EXPRESS AGENCY, Inc. v. BRABHAM (two cases). RAILWAY EXPRESS AGENCY, Inc. v. BRABHAM et al.
• Decision Date: 02 December 1952
• Court: Florida Supreme Court

Page 713

62 So.2d 713

RAILWAY EXPRESS AGENCY, Inc. v. BRABHAM (two cases).

RAILWAY EXPRESS AGENCY, Inc. v. BRABHAM et al.

Supreme Court of Florida, en Banc.

Dec. 2, 1952.

Rehearing Denied Jan. 27, 1953.

Loftin, Anderson, Scott, McCarthy & Preston, William S. Frates and William C. Steel, Miami, for appellant.

Hall & Hedrick and Lee M. Worley, Miami, for appellee.

HOBSON, Justice.

The tragic accident which gave rise to this litigation occurred in the City of Miami on Northwest 27th Street, which is located in a residential area, at about Noon Sunday, August 10, 1947. A Railway Express Agency truck ran over a large cardboard box in which Michael and Damon Brabham were playing in or about the middle of 27th Street between 14th and 15th Avenues. Michael was killed and Damon was severely injured. At the time of the accident Michael was approximately seven years old and Damon was of the age of five and one-half years.

Three suits were instituted as a result of this accident. One was brought by E. C. Brabham, the father of Michael and Damon Brabham, against the Railway Express Agency to recover damages for the wrongful death of Michael. In that case the jury returned a verdict of not guilty. Thereafter the trial judge granted a motion for a new trial. Mr. Brabham also brought a suit against the Express Company for medical expenses incurred and for the loss of services occasioned by virtue of injuries to his other son, Damon. The third action was one instituted by Damon in which he sought to recover damages for the pain and suffering resulting from the injuries which he had sustained. The two last named cases were consolidated for trial before a jury. The verdicts of the jury were in favor of the plaintiff below in each of these actions. Final judgments consequent upon such verdicts were entered. In the father's suit the judgment was for $15,000 and in Damon's suit it was for $35,000. The Express Company filed a motion for a new trial in each of these cases, which motions were denied by the trial judge.

The appeal in each of these three cases was taken by the Express Company. In the wrongful death action the appeal is from the order granting a new trial and in the other two actions it is from the adverse judgments. This Court is unanimous in its determination that the appeal in the wrongful death action from the order of the trial judge which granted a new trial should be reversed. The Court is divided four to three on the question whether or not the judgments secured by appellees (plaintiffs below) in the other two cases should be affirmed.

As the majority understands this rule of law, it is that one cannot legally be held liable for injury or damage to the person or property of another unless, by the exercise of that degree of care and caution which a prudent or reasonably cautious man acting under similar circumstances would exert, he could have foreseen not the extent of the injury or damage or the manner in which it occurred but could have foreseen that some injury or damage to the person or property of another would reasonably be expected to ensue as a result of his action or conduct.

There is little, if any, difference between our concept of this rule and that expressed in the minority opinion. The divergence in views stems from honest attempts to apply the doctrine of foreseeability to the facts of the instant cases.

It is our conclusion that there is in this record competent substantial evidence which justified the jury in determining that the driver of the appellant's large and comparatively heavy railway express truck, by the exercise of that degree of care and caution which a prudent and reasonably cautious man would have exercised under similar circumstances, could have foretold the fact that the box contained animate objects in the form of the two little boys.

The conclusion reached by the minority is predicated, as we comprehend, upon the view that this record does not contain any competent substantial evidence from which the jury could have found or reasonably inferred that the driver of appellant's truck, by the exercise of that degree of care and caution which under the circumstances was required of him by law, could have foreseen that injury to another or others would reasonably be calculated to result from his action.

The pertinent evidence in the two cases which were consolidated below shows that the height of each boy was greater than the length of the box proper but less than the over-all length of the box including the flaps. We should not, and do not, assume that the flaps stood out rigidly and at all times fully extended while the box was rolling over and over so as to hide every part of the boys' bodies from the view of the truck driver even if he had been exercising that degree of care and caution which a prudent and reasonably cautious man would have employed under similar circumstances.

We do not believe that this Court is justified in indulging such presumption when the testimony discloses that: the cardboard box was rolling over as the truck approached it; the accident occurred in a strictly residential district, not on a school day but on Sunday at approximately 12:00 o'clock Noon; the boys had been playing in and rolling the box over for several hours before the accident and thus had broken down its corners and, as the jury evidently did determine, had also weakened or broken down the flaps which we are apparently expected to assume were as rigid as were the flaps upon the obviously brand new box which was exhibited by counsel to this Court at the time of argument; the flaps were indeed 'flaps' which very word connotes 'something broad and flexible, or flat and thin, that hangs loosely'; the jury had a distinct advantage over us in that the jurors actually observed the witnesses as each gave his version of this unfortunate tragedy and had the duty, responsibility and opportunity of determining the question whether these flaps were truly rigidly extended or broken down in their texture in such manner as to have at least some part of the boys' bodies exposed to the view of a reasonably cautious, prudent operator of a dangerous instrumentality who saw, or should have seen, the box rolling over and over. The question whether the flaps were actually rigidly extended was for the jury.

It may be noted in passing that the foregoing observations are made without consideration being given to the fact that Damon Brabham, the younger of the two boys who was playing in the cardboard box, testified: 'Part of my feet were sticking out on the flaps of it and part of his [Michael's] head was sticking out on the flaps too.' Objection was made to this testimony. In fact, appellant takes the position that Damon Brabham should not have been permitted to testify at all about the accident because at the time it took place he was only five and one-half years of age. If the objection which was made could be taken as one which challenged Damon's competency as a witness the fact remains that the trial judge examined the boy and obviously determined that he was competent to testify. We do not find any justification in the record for reversing the trial judge in this exercise of his sound judicial discretion.

Assignment of Error No. 5, to-wit: 'The jury was deceived as to the force and credibility of the evidence' is relied upon in support of the proposition that this Court should consider as reversible error the trial judge's action in permitting Damon to testify. We do not believe that this assignment of error is sufficient predicate for that position because after examining Damon the trial judge made the statement that he would allow the boy's testimony 'for whatever it may be worth' which statement, so far as the record discloses, was made in the presence of the jury. Therefore, it could hardly be said that the jury was deceived as to the force and credibility of Damon's testimony because the judge's statement was obviously an admonition to the jury to consider the boy's age at the time of the accident in evaluating his testimony. Although we have not found it necessary to consider Damon's testimony in reaching our conclusion, it is patent such testimony if considered, would strengthen our view that had the driver of appellant's truck been exercising that degree of care and caution which a prudent or reasonably cautious man would have exercised under existing circumstances, he would readily have observed (as the jury patently determined he should have observed) that the boys were in the cardboard box while it was rolling over and the flaps were necessarily flapping, for we find no evidence in the record to the effect that the flaps were firmly attached to one another or to the box except that each was attached at one end to the box but not in such manner as to keep it from flapping back and forth.

How far is the doctrine of foreseeability to be carried in cases involving the operation or use of dangerous instrumentalities? Suppose a person walking along a rural road in a sparsely settled farming area, yet conscious of the existence of family dwelling houses thereon or nearby, with a pistol, rifle or other firearm in his possession, which he would have a legal right to do, should see a cardboard box of the same type as the box depicted by the testimony in these cases and should decide to use it as a traget, could it reasonably be said that he might do so if all other essential facts and circumstances were identical with those delineated by the testimony in the instant cases, and not be legally liable for the injury which he might inflict thereby upon the boys playing in the cardboard box? We think that the degree of care and caution which a prudent or reasonably cautious man would use under such circumstances would require a more thorough observation and examination than merely to assume that a very moderate wind was causing the large cardboard box to roll over and over. We repeat that...