Southern Utilities Co. v. Matthews

• Decision Date: 29 June 1922
• Parties: SOUTHERN UTILITIES CO. v. MATTHEWS.
• Court: Florida Supreme Court

93 So. 188

84 Fla. 30

SOUTHERN UTILITIES CO. v. MATTHEWS.

Florida Supreme Court

June 29, 1922

Error to Court of Record, Escambia County; C. Moreno Jones, Judge.

Action by Mary Matthews against the Southern Utilities Company. From a judgment for plaintiff, defendant brings error.

Reversed.

Browne C.J., and Whitfield, J., dissenting.

Syllabus by the Court

SYLLABUS

Circumstantial evidence of negligence sufficient; conjucture insufficient finding of negligence on conflicting evidence conclusive. In an action for damages for the wrongful death of a person where the plaintiff's case rests upon circumstantial evidence as to the negligence of the defendant's servant which it was alleged caused the injury, if the circumstances raise a fair presumption of negligence on the defendant's part of that of his servant the plaintiff is entitled to recover. But the existence of negligence cannot rest in mere conjecture. If the evidence is such that reasonable men may differ as to whether or not there was negligence, the verdict of the jury finding that it did exist should not be disturbed.

Burden on plaintiff to prove negligence caused injury. In an action for damages for the wrongful death of a person, the burden is upon the plaintiff to prove such facts from which it can fairly be inferred that the defendant or his servant was guilty of such negligence as was the proximate cause of the injury to the deceased.

Burden on plaintiff to establish negligence of defendant; negligence must be established by preponderance of evidence. Where in an action for damages for the wrongful death of another, it is alleged that the defendant's agent and servant carelessly and negligently caused and allowed a certain mule and wagon of which the defendant was the owner and which was used by the defendant in the delivery of ice to its partrons, to collide with and strike against the truck on which plaintiff's husband was riding, and to strike against the plaintiff's husband, the burden is upon the plaintiff to show that the driver of the wagon either negligently allowed the mule and wagon to collide with the truck, or that he deliberately or by design brought about such collision. It is not sufficient to introduce evidence which merely suggests a possibility of negligence. When the evidence is equally consistent with the absence of negligence on the part of defendant or its servant as with it, the party affirming the negligence cannot be said to have established it as against the defendant.

Refusal of requested charge held error. In an action for damages for the wrongful death of one, resulting from alleged negligence on the part of the driver of a mule and wagon in causing or allowing the mule and wagon to collide with a fire truck on which the deceased was riding, and one feature of the defense is that the accident was caused by the mule's action, in spite of the efforts of the driver to control it, who in such efforts used ordinary caution to restrain and control the mule, it is error on the part of the court to refuse requested instructions embodying the appropriate rule of law, when such instructions as requested were applicable to the evidence in the case.

COUNSEL

Sullivan & Sullivan, of Pensacola, for plaintiff in error.

John P. Stokes, of Pensacola, for defendant in error.

OPINION

ELLIS J.

On December 17, 1920, Jack Matthews, who was an employee of the fire department of the municipality of Pensacola, was seriously injured by being thrown from a fire truck on which he was riding wild responding to a fire alarm sent in somewhere near the east end of Gonzales street, east of Tarragona street.

The declaration alleges that the accident occurred because of the negligence of the agent and servant of the Southern Utilities Company in causing and allowing a mule and wagon, owned by the company and used in the delivery of ice to its patrons, to collide with the fire truck, and striking Matthews, throwing him from the truck to the pavement, caused the injury resulting in his death. The action was brought by the widow. The case went to trial, after a demurrer to the declaration was overruled, upon the plea of not guilty. There was a verdict and judgment for the plaintiff, and the defendant seeks a reversal here upon writ of error. No assignment of error is based upon the order overruling the demurrer.

The plaintiff's case rests upon the alleged negligence of the defendant's servant in causing and allowing the mule and wagon to collide with the fire truck, which was being driven by an employee of the fire department along the street in responding to an alarm of fire.

Tarragona street, sometimes called Railroad street, runs north and south; there are three railroad tracks laid upon it where it intersects Gonzales street which runs east and west and at the point of intersection Gonzales street on the east side of Tarragona is 22 feet 2 inches wide. At the southeast corner of the intersection of the two streets a 'fire hydrant' is located, about 15 feet east of the nearest railroad track, and about the same distance from Gonzales street curbing. A fire alarm had been sent in from a point on Trarragona street north of the intersection of the two streets, but as the location was not in the territory which was assigned to the station to which Jack Matthews was attached the trucks from that station did not respond. A water hose had been attached, however, to the fire hydrant and extended northward along Tarragona street east of the nearest railroad track across the line of Gonzales street.

A second fire alarm was sent in from a point in the neighborhood of East Gonzales street. That location was also not in the territory assigned to the fire station to which Matthews was attached. Inasmuch, however, as the station in whose territory or district the first alarm was given had responded to that call, the station to which Matthews was attached responded to the second call, sending two trucks. Each truck followed the same route to the fire, eastward along Gonzales street across Tarragona.

On Gonzales street, just eastward of Tarragona, how far is not definitely stated. there were two automobile trucks, one on the north side of the street and one on the south side; opposite, immediately behind the first truck, stood the defendant's ice wagon, to which was hitched a mule driven by a negro. The first fire truck passed over the water hose without bursting it, and safely through the narrow passageway between the automobile truck and ice wagon on one side of the street and the automobile truck on the other. The second fire truck, upon the left side running board of which Matthews was standing sounding the siren or bell which gives warning of the approach of the truck, was being driven by a man named Adrian Roache. The truck ran upon the water hose and burst it; the driver increased the speed of his machine to overcome the slight incline of the street at that point, and undertook to pass through the narrow space. His machine passed safely between the two automobile trucks, one upon one side and one upon the other side of the street; but, according to the testimony of Mr. Roache, the mule, which was standing with its head toward the west, or Tarragona street, 'dashed out from behind one of the automobiles' as the fire truck passed. Either the head of the mule or the shaft of the ice wagon struck Matthews and he was thrown to the ground. The driver of the fire truck stopped his machine within 25 or 30 feet, and went back to where Mr. Matthews was lying, and rendered what assistance he could.

On cross-examination, Roache said that the fire truck was passing the automobile when the mule 'dashed out,' and he did not know whether the driver of the ice wagon was on the driver's seat or not.

There was evidence to show that when the first truck passed along Gonzales street the mule and ice wagon were going westward along the street and turned out to avoid the truck, and the second truck, the one on which Matthews was riding, was not far behind the first. The conflict in the evidence upon the speed at which the fire truck was driven, and whether the mule came out into the path of the fire truck, and whether it skidded after passing over the hose, is very stubborn.

The driver of the truck and another fireman, who was also upon the machine with Matthews, testified that the truck was driven at a speed of approximately 15 miles an hour, that the mule came into the fire truck's path, and that the fire truck did not skid. Upon the other hand, defendant's witnesses, bystanders, said the truck was traveling about 20 or more miles an hour, that the mule did not move from the curb where it was standing before the accident, and that the fire truck skidded after passing over the hose and collided with the ice wagon. There is no conflict as to where the driver of the ice wagon was; he was on the seat of the wagon holding the reins.

The fifth assignment of error is that the court erred in overruling the first five grounds of the motion for a new trial, which attacks the verdict as unsupported by law and the evidence. According to the certificate of the judge, the bill of exceptions contained all the evidence.

There was no direct or positive evidence of negligence on the part of the driver of the ice wagon. The plaintiff's case rests upon circumstantial evidence as to negligence of the defendant's servant.

If the circumstances raise a fair presumption of negligence on the defendant's part, or that of his servant, the plaintiff is entitled to recover; but the existence of negligence cannot rest in mere conjecture. If the evidence is such that reasonable men may differ as to whether or not there was negligence, the verdict of a jury finding that it did...