Russell v. Jacksonville Gas Corp.
| Decision Date | 05 January 1960 |
| Docket Number | No. B-176,B-176 |
| Citation | 117 So.2d 29 |
| Parties | E. H. RUSSELL and his wife, Irene Russell, Appellants, v. JACKSONVILLE GAS CORPORATION, a corporation, Appellee. |
| Court | Florida District Court of Appeals |
George A. Pierce and Carl G. Swanson, Jacksonville, for appellants.
Howell, Kirby, Montgomery & Sands, Jacksonville, for appellee.
Plaintiff has appealed from a final judgment entered upon an order of involuntary non-suit. The error assigned is the trial court's announced intention at the conclusion of plaintiff's evidence to direct a verdict for defendant on both counts of the complaint.
Plaintiff's complaint sought damages for injuries sustained from an explosion which occurred in a gas range which she had purchased from defendant and which defendant had later undertaken to repair. The first count of the complaint is based upon an alleged breach of express warranty and the second count upon the theory of negligence in failing to properly repair the range in accordance with defendant's undertaking.
Plaintiff entered into a contract whereby she purchased a gas range from defendant gas company. Under the terms of the agreement, the gas company was to install the range and furnish gas for its use. Shortly after the gas appliance had been installed in plaintiff's home, it developed a malfunction in the control knob of the oven which was called to the defendant's attention. It appears that the control knob on the oven was working hard and defendant undertook to repair it on the request of plaintiff. Upon the completion of the repair job, plaintiff was told by an employee-repairman of defendant that it was 'all right', and that it was 'all right for you to use it.'
Shortly thereafter, plaintiff used the oven in the morning hours for baking, turning it off when she was finished. Later the same day, in the late afternoon, plaintiff again attempted to use the oven. She struck a match, opened the oven door, and as she attempted to light it an explosion occurred, injuring plaintiff. It is not clear whether plaintiff turned the oven on immediately prior to the explosion.
Subsequent to the explosion, an employee of defendant gas company stated to plaintiff 'Mrs. Russell, there is a little knob on the thermostat that cuts the gas off and as far as I know that knob broke off, and when you turned the oven off it probably went past where it was supposed to be off and cut the gas back on again' and further 'it wouldn't have happened again, maybe in a hundred times, but it was defective and that is what caused it.' The clear inference to be drawn from this testimony is that when plaintiff turned the control knob of the oven to the 'off' position, the defective mechanism permitted gas to seep into the oven, which caused the explosion when plaintiff attempted later in the day to again light the oven for use.
Plaintiffs rested their case, and upon the trial court indicating its intention to grant a directed verdict in favor of defendant corporation, plaintiffs took a non-suit.
Inasmuch as the facts are not in dispute, the sole question presented for our consideration on the issue of defendant-appellee's negligence is whether the trial court erred by clearly indicating that it was going to direct a verdict against plaintiff-appellants, thus forcing them to take an involuntary non-suit. It is well established in this jurisdiction that if, as in the case at bar, the facts are not in dispute and the evidence and inferences that a jury may lawfully deduce therefrom do not as a matter of law establish or tend to establish the cause of action, a verdict should be directed for the moving adverse party, subject to the equally important rule that a verdict should never be directed for one party unless the evidence is such that no view that a jury may lawfully take of it favorable to the adverse party can be sustained under the law. 1 In short, even in cases where circumstantial evidence is relied upon, if the circumstances are susceptible of a reasonable inference or inferences which would authorize recovery, and are also capable of an equally reasonable contrary inference or...
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...World Co. v. Goode, 501 So.2d 622 (Fla. 5th DCA 1986); Jackson v. Williams, 385 So.2d 190 (Fla. 5th DCA 1980); Russell v. Jacksonville Gas Corp., 117 So.2d 29 (Fla. 1st DCA 1960); see also Lubell v. Roman Spa, Inc., 362 So.2d 922 (Fla.1978); Selvin v. DMC Regency Residence, Ltd., 807 So.2d ......
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...not, the trial and appellate courts often have a duty, difficult as the task may be, of drawing that line. Russell v. Jacksonville Gas Corporation, 117 So.2d 29 (Fla. 1st DCA 1960). Despite the difficulties, and added complexities brought about by the adoption of the comparative negligence ......
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