Wilson v. Redding

• Decision Date: 05 October 1962
• Docket Number: No. 2795,2795
• Citation: 145 So. 2d 252
• Parties: Carlos Frederico WILSON and Ethel Wilson, husband and wife, Appellants, v. T. A. REDDING, d/b/a T. A. Redding Garbage Service, and Lawrence Lilly, Appellees.
• Court: Florida District Court of Appeals

Page 252

145 So.2d 252

Carlos Frederico WILSON and Ethel Wilson, husband and wife, Appellants, v.T. A. REDDING, d/b/a T. A. Redding Garbage Service, and Lawrence Lilly, Appellees.

No. 2795.

District Court of Appeal of Florida, Second District.

Oct. 5, 1962.

T. J. Johnson, Jr., Johnson & Barrs, Tampa, for appellants.

A. Broaddus Livingston, Mabry, Reaves, Carlton, Fields & Ward, Tampa, for appellees.

ALLEN, Acting Chief Judge.

The plaintiffs, Carlos Wilson and Ethel Wilson, his wife, appeal a final judgment entered for the defendants in an action resulting out of an automobile-garbage truck collision.

Carlos Wilson was a passenger in an automobile driven by Mrs. Auvergne Shumate on September 22, 1960, which collided with a garbage truck owned by defendant Redding and driven by an employee, Lawrence Lilly.Count I of the complaint alleged that defendant Lilly carelessly and negligently operated the garbage truck causing resultant personal injuries to Carlos Wilson.Count II realleged the allegations of Count I and the plaintiff, Ethel Wilson, sought damages for loss of consortium and society by reason of the injuries sustained by her husband.The Count for loss of consortium was dismissed by the trial judge prior to trial.

The answer denied the allegations of the complaint and alleged that Mrs. Shumate was the sole proximate cause of the accident.The facts disclose that Mrs. Shumate was traveling south on U.S. 41, about 55 to 60 m. p. h. on an inside lane next to an island.She testified that she observed defendants' truck suddenly cut in front of her about two car lengths ahead.She applied her brakes but struck the rear of the truck, and plaintiffCarlos Wilson's body was thrown out of the car, his feet remaining inside the car.Mrs. Shumate was also injured, suffering a fractured knee and hip.

Mrs. Shumate testified that the truck driver did not signal to change lanes and the investigating Highway Patrolman testified that a liquid trail led out of a driveway about 70 yards in the lane next to the curb.About 30 feet from the intersection the trial made an abrupt turn toward the inside lane and led to the rear of the truck.He also testified that there were 71 feet of skid marks.Defendant Lilly testified that he signaled before turning, and the defendants denied that the liquid trail came from their truck.The jury found the defendants'not guilty,' and the court entered judgment for the defendants, and later denied plaintiffs' motion for a new trial.

The appellants do not question the sufficiency of the evidence that was adduced to sustained the jury verdict in this case.The appellants argue that the jury obviously considered evidence outside the testimony presented and that the testimony presented was in irreconcilable conflict.If, in fact, the jury considered matters outside the testimony, nothing appears in the record before us from which we could deduce such actions.A study of the testimony convinces us that a jury question was presented and fairly decided and that, therefore, the lower court did not err in refusing to grant a motion for new trial.

The appellants also assign as error the striking of appellantEthel Wilson's Count II which is for loss of consortium.

Counsel for the appellants, in their brief,...