Stevens v. Tampa Electric Co.

Decision Date12 April 1921
Citation88 So. 303,81 Fla. 512
PartiesSTEVENS v. TAMPA ELECTRIC CO.
CourtFlorida Supreme Court

Error to Circuit Court, Hillsborough County; O. K. Reaves, Judge.

Action by Persis Stevens, joined by her husband, against the Tampa Electric Company. Judgment for defendant, and plaintiffs bring error.

Affirmed.

Syllabus by the Court

SYLLABUS

Statutory presumption ceases on showing ordinary care. The presumption of negligence cast upon railroads by our statute in personal injury cases ceases when the railroad company has made it appear that its agents have exercised all ordinary and reasonable care and diligence.

Jury cannot find for plaintiff unless evidence produces reasonable belief of essential facts. A jury cannot lawfully find for the plaintiff unless the evidence is of such a nature as to produce a reasonable belief of the facts essential to the verdict.

Verdict not in accord with manifest weight of evidence or with justice should not be sustained. A trial court should not sustain a verdict when it is not in accord with the manifest weight of the evidence or with the justice of the case.

Where errors not distinctly shown judgment below will not be disturbed. In appellate proceeding it is incumbent upon the plaintiff in error or appellant definitely to show the errors complained of. And, if this burden is not distinctly met, the action of the trial court will not be disturbed. Where the appellate court is in doubt as to the propriety of a ruling of the trial court, the ruling will stand.

Where error in determining probative effect of competent testimony not clear, judgment not reversed. Where it is not clear that a trial judge erred in determining the probative effect of the competent testimony of witnesses taken before him, his judgment thereon should not be reversed, particularly where the testimony is conflicting, and the witnesses are adversely interested or may not have had the same opportunities in observing, or equal qualities to appreciate, the facts testified to.

Moving for directed verdict admits every conclusion favorable to adverse party. A party moving for a directed verdict admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly are reasonably infer from the evidence.

Care depends on duty under circumstances. In an action for negligence, the question whether the railroad company has exercised all ordinary and reasonable care and diligence is to be determined by a consideration of the duty imposed by law upon the company under the facts and circumstances of each case that arises.

When direction of verdict for defendant will be upheld on appeal stated. In determining whether the trial court committed reversible error in directing a verdict for the defendant on the evidence adduced by both parties, the fair inferences to be drawn from all the evidence in favor of the plaintiff should be considered; but if, after doing this, the appellate court is in doubt as to whether there was substantial evidence to afford a sufficient legal predicate for a verdict for the plaintiff, the trial court will not be held in error for directing a verdict for the defendant, where the trial court saw and heard the witnesses testify, and no rule of law has been violated.

Presumptions are in favor of rulings of trial court. The presumptions are in favor of the ruling made by the court, and the burden is on the plaintiff in error to clearly show from the evidence that the court committed the error assigned.

No violation of right to jury trial in directing verdict for defendant, where evidence would not support verdict for plaintiff. When the evidence would not in law support a verdict for the plaintiff, there is no violation of the organic right to a jury trial in directing a verdict for the defendant.

COUNSEL

Lunsford & Whitaker, of Tampa, for plaintiffs in error.

Knight Thompson & Turner, of Tampa, for defendant in error.

OPINION

WHITFIELD J.

In an action to recover damages for injuries to the person and to an automobile which the plaintiff was running at a street crossing, the declaration is in several counts, and in substance alleges that the injuries were proximately caused by the negligence of the defendant street car company in operating its car 'at a high, rapid, and excessive rate of speed,' and in negligently failing 'to keep a proper lookout,' and in carelessly and negligently running and operating 'its said car along said Twiggs street at a very dangerous and excessive rate of speed exceeding the limit of 12 miles an hour fixed by municipal ordinance of the city of Tampa,' and in carelessly and negligently failing 'to sound or give warning of danger at said crossing, or keep a lookout for danger, or have car under control at said crossing, or make an effort to stop said car until it was too late to avoid a collision.' Trial was had on a plea of not guilty. A directed verdict for the defendant was properly denied at the close of plaintiff's evidence, as the plaintiff had shown an injury caused by a collision with the defendant company's street car, and the presumption of negligence of the company imposed by the statute upon a showing of injury as alleged, had not been overcome by proof that the employees of the defendant company had 'exercised all ordinary and reasonable care and diligence' to avoid the injury.

After all the testimony on both sides had been adduced, the court upon motion directed a verdict for the defendant and rendered judgment thereon.

The plaintiff took writ of error, and in effect contends that, even though the plaintiff may not have been free from fault, yet, as the defendant also was at fault, there may be a diminished recovery of damages under the statute in proportion as the plaintiff was at fault.

The statute provides that a railroad company shall be liable for 'any damage done' to persons or property by the running of the cars of the company, unless the company shall make it appear that its agents 'exercised all ordinary and reasonable care and diligence' to avoid the injury; the presumption in all cases being against the company. Section 3148, Gen. Stats. 1906; section 4964, Rev. Gen. Stats. 1921. This statute is applicable to street car companies. Consumers' Electric Light & St. R. Co. v. Pryor, 44 Fla. 354, 32 So. 797.

But in order to comply with the requirements of the Constitution as to due process and equal protection of the laws, it is by statute also provided that no person shall recover damages from a railroad company for injury to himself or to his property when the same is caused by his own negligence. Section 3149, Gen. Stats. 1906; section 4965, Rev. Gen. Stats. 1921.

It is also provided that, if the plaintiff and the agents of the railroad company are both at fault in causing an injury, the plaintiff may recover, but the damages shall be diminished in proportion as the fault of the plaintiff contributed to the entire injury sustained by him. Section 3149, Gen. Stats. 1906; section 4965, Rev. Gen. Stats. 1921; Seaboard Air Line Ry. v. Callan, 73 Fla. 688, 74 So. 799; Seaboard Air Line Ry. v. Tilghman, 237 U.S. 499, 35 S.Ct. 653, 59 L.Ed. 1069.

The presumption of negligence cast upon railroads by our statute in personal injury cases ceases when the railroad company has made it appear that its agents have exercised all ordinary and reasonable care and diligence. In the presence of such proof by the railroad company the jury do not take any such presumption with them to the jury room in weighing the evidence and in coming to a determination. The statute does not create such a presumption as will outweigh proofs, or that will require any greater or stronger or more convincing proofs to remove it. All that the statute does in creating the presumption is thereby to cast upon the railroad company the burden of affirmatively showing that its agents exercised all ordinary and reasonable care and diligence, and here the statutory presumption ends. And when in a suit for personal injury the railroad company proves affirmatively by undisputed and uncontradicted evidence that it and its agents exercised all ordinary and reasonable care and diligence, and were not guilty of the negligence alleged, the plaintiff has no right to recover. Seaboard Air Line R. Co. v. Thompson, 57 Fla. 155, 48 So. 750; Louisville & Nashville R. R. Co. v. Harrison, 78 Fla. 381, 83 So. 89; Atlantic Coast Line R. Co. v. Miller, 53 Fla. 246, 44 So. 247; Seaboard Air Line Ry. v. Smith, 53 Fla. 375, 43 So. 235; Live Oak, P. & G. R. Co. v. Miller, 72 Fla. 8, 72 So. 283; Tampa Electric Co. v. Bourquardez, 72 Fla. 161, 72 So. 668; Seaboard Air Line R. Co. v. Barwick, 51 Fla. 304, 41 So. 70; Louisville & N. R. Co. v. Padgett, 71 Fla. 90, 70 So. 998; Seaboard Air Line Ry. v. Tomberlin, 70 Fla. 435, 70 So. 437; Tampa Electric Co. v. Barber, 88 So. 302, decided this term.

If under the statute first above quoted, section 3148, General Statutes of 1906, the defendant has made 'it appear that its agents exercised all ordinary and reasonable care and diligence' to avoid the injury, the provision of section 3149, General Statutes of 1906, as to a reduced recovery when both parties are at fault, has no application in this case. The defendant must have been guilty of some negligence as alleged before the apportionment provisions of the statute can be applicable.

A jury cannot lawfully find for the plaintiff unless the evidence is of such a nature as to produce a reasonable belief of the facts essential to the verdict. Escambia County Electric Light & Power Co. v. Sutherland, 61 Fla. 167, 194, 55 So. 83; Florala Sawmill Co. v. Smith, 55 Fla. 447 46 So. 332; Seaboard Air Line Ry. v. Royal Palm Soap Co., ...

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