Smith's Bakery, Inc. v. Jernigan, C-473
| Decision Date | 16 November 1961 |
| Docket Number | No. C-473,C-473 |
| Citation | 134 So.2d 519 |
| Parties | SMITH'S BAKERY, INCORPORATED, an Alabama corporation and Harold M. McNeil, Appellants, v. James B. JERNIGAN, Appellee. |
| Court | Florida District Court of Appeals |
Yonge, Beggs & Lane, Pensacola, for appellants.
Earl L. Lewis, Milton, and Ferrin C. Campbell, Crestview, for appellee.
This is an appeal from a final judgment for plaintiff which was entered pursuant to verdict of the jury in a suit for personal injuries said to result from negligence of defendants in the operation of a motor vehicle.
At the close of plaintiff's case and again at the close of all the evidence, the defendants moved for a directed verdict on the ground, in substance, that the evidence was insufficient to establish negligence on the part of defendants proximately resulting in the alleged injury. The sole issue on this appeal is whether the trial court erred in denying said motions.
Reviewing the material and competent evidence in the light most favorable to plaintiff's case, this unfortunate accident occurred under the following circumstances: For some time prior to May 23, 1959, plaintiff operated a roadside grocery store in a rural area of Santa Rosa County. Over a period of two to three months prior to that date defendant Harold M. McNeil, in the course of his employment for defendant Smith's Bakery, Incorporated, as a route salesman, made calls in his employer's delivery truck at plaintiff's grocery for the purpose of selling and delivering bakery products to plaintiff. During that period it was his custom to park the truck in an area available for that purpose between the front door of the store and a gas tank stand operated by plaintiff which was located between the store and a public hibhway on which it fronted.
The area in front of the store was not hard-surfaced or covered with any substantial stabilizing material. However, at some unspecified time prior to the commencement of defendant McNeile's visits to the grocery the plaintiff on three intermittent occasions had caused a truckload of material, consisting of mixed dirt, sand and some gravel, to be scattered on the ground in the area around the front of the grocery, including that where defendant McNeil customarily parked the bread truck.
On the day of the accident defendant McNeil, in accordance with his custom, parked the truck near and in front of the door to the grocery, got out and delivered plaintiff's order of bread into the store, received payment for it from the plaintiff, and he and plaintiff then stepped outside the door 'swapping conversation, one thing and another * * *.' McNeil then entered the truck on the right-hand side and drove it off. As he did so one or both of its rear wheels spun, causing some dirt, sand and small pebbles from the ground to be thrown into plaintiff, who was standing at the rear of the truck, some of which struck him in the right eye and caused injuries necessitating its removal.
Our research discloses no Florida case having a similar factual background. However, we follow the elemental rule that 'foreseeability' is an essential element of actionable negligence. In Pope v. Pinkerton-Hays Lumber Co. (Fla.1960), 120 So.2d 227, 229, cert. den. 127 So.2d 441, this court, in setting out the tests by which to determine whether proximate cause resulting in the injury is present in a particular case, listed 'foreseeability' with the comment that
'* * * there can be no recovery for an injury that was not...
To continue reading
Request your trial
-
Villa Bellini Ristorante & Lounge, Inc. v. Mancini
...the proceeding, and remains with that party to establish the material elements of recovery." (citing Smith's Bakery, Inc. v. Jernigan, 134 So. 2d 519, 521 (Fla. 1st DCA 1961) )); see also 2 J. Strong, McCormick on Evidence § 337 (5th ed. 1999) ("The burdens of pleading and proof with regard......
-
Symons Corp. v. Tartan-Lavers Delray Beach, Inc.
...trial court upon appropriate motion to take the case from the jury and direct a verdict for the defendant." Smith's Bakery, Inc. v. Jernigan, 134 So.2d 519, 521 (Fla. 1st DCA 1961). In order to prevail on an "alter ego" or "mere instrumentality" theory, Symons had the burden of demonstratin......
-
Church of Scientology of California v. Blackman
...trial court upon appropriate motion to take the case from the jury and direct a verdict for the defendant." Smith's Bakery, Inc. v. Jernigan, 134 So.2d 519, 521 (Fla. 1st DCA 1961). Applying these rules to the case at bar, we hold that Dr. Blackman failed to adduce competent evidence from w......
-
Firestone Tire & Rubber Co., Inc. v. Lippincott, 79-194
...for directed verdict. Foreseeability of injury is a prerequisite to the imposition of a duty upon a defendant. Smith's Bakery, Inc. v. Jernigan, 134 So.2d 519 (Fla. 1st DCA 1961); Memorial Park, Inc. v. Spinelli, 342 So.2d 829 (Fla. 2d DCA 1977). If injury is not reasonably foreseeable, the......