Winner v. Sharp
| Decision Date | 13 December 1949 |
| Citation | 43 So.2d 634 |
| Parties | WINNER v. SHARP. |
| Court | Florida Supreme Court |
Barton & Saltsman, St. Petersburg, for appellant.
McMullen & Goza, Clearwater, for appellee.
Appellee brought an action against appellant to recover damages for the negligent death of his infant daughter. It is alleged that the fatal accident took place about 4 P.M. on a clear day in February, about two miles south of the Town of Largo in Pinellas County on Public Highway No. 19. The case was tried on these pleas to the declaration. (1) Not guilty, and (2) contributory negligence on the part of the child's custodian. The jury returned a verdict for the plaintiff, on which final judgment was entered. A new trial was denied and the defendant appealed.
Appellant's primary reliance for reversal is directed to the refusal of the trial court to permit him to introduce the testimony of Patrolman Peacock and Justice of the Peace Baker, for the purpose of impeaching the evidence of Mrs. Aletha Smith.
Mrs. Smith was the main witness for the plaintiff and the only eye witness to the tragedy. Her testimony will be summarized later. The testimony of Peacock and Baker was proffered to show that on the day after the accident, Mrs. Smith made a statement to them which was contrary to her evidence at the trial, of which she had no recollection, but it appears that she was taking sedatives and appeared to be suffering from shock at the time.
The witnesses Peacock and Baker investigated the accident the day after it occurred and the alleged statement to them by Mrs. Smith was to the effect that while she was waiting for a chance to cross the highway, the child pulled away from her and ran into the line of traffic. The purpose of the attempted impeachment of Mrs. Smith's testimony was to develop the fact that she was custodian of the child, that the child's parents were guilty of contributory negligence and that Mrs. Smith's negligence was the negligence of te parents.
It is true tat Section 90.10, F.S.A. provides for the impeachment of witnesses by te adverse party under certain circumstances. The admission or rejection of impeaching testimony is within the sound discretion of the trial court. Mungin v. State, 109 Fla. 310, 147 So. 577. We do not think the rejection of the proffered testimony was harmful. The defendant's wife testified that Mrs. Smith twice exclaimed that 'she pulled away from me.' Having reference to the deceased child the proffered evidence was cummulative and the jury had the advantage of it. They also had the advantage of Mrs. Smith's testimony with that of other witnesses.
Defendant testified in substance that he was driving north on Highway 19, at about forty or fifty-five miles per hour on his side of the road, that he came to a sign facing northbound traffic warning travelers to 'drive slow--County Home', that he passed the cross-road leading to the County Home, that he resumed his original speed and drove northward for an additional half mile when he came to private driveways and a trailer park, that traffic was fairly heavy in the opposite direction, that he did not see the little girl before the impact, but that just after another car had passed going southward, blocking his view to the left front, he heard a thud and saw the little child had come out from behind the other car and had been struck by his car and thrown forward and to the left of the highway, but that he was in his proper lane at all times and that after the accident he applied his brakes and pulled off the shoulder to the right.
Mrs. Smith's version of the accident was in substance, that she secured permission from the parents of the little girl to take her across the highway from the trailer park to a small grocery store to get some ice cream, as she had done many times before. When this was done she and the child walked northward along the east side of the highway, the child on her right, but that she was not at any time holding the child's hand, that they reached the south end of the mail boxes, when she looked to the northward and no traffic was approaching, 'so I started about, just about a short distance on the highway, and little Suzanne was just about a step ahead of me, and I looked up to the South, and the car seemed to be far away, and, oh, just like that he twisted by and just took her right out from in front of me, and the wind sort of brushed me and my skirt.'
The statements of the defendant and Mrs. Smith were contradicted by the evidence in some respects. There is other evidence which shows that the child was knocked about sixty feet and that it was killed instantly. The evidence also shows that the community where the accident took place had a store, a county home, a trailer park and some residences. The...
To continue reading
Request your trial
-
Roberts v. Stevens Clinic Hosp., Inc.
...wears down the physical and nervous system." Barrett v. Charlson, 18 Md.App. 80, 93, 305 A.2d 166, 174 (1973), quoting Winner v. Sharp, 43 So.2d 634, 636-37 (Fla.1949). My primary concern lies with the citizens of our State who have become victims of the tort system turbulence. In time, thi......
-
In re Std. Jury Instructions in Civil Cases -- Report No. 09-01
...of [injury] [and] [death] to (child).NOTE ON USE FOR 401.22e Wynne v. Adside, 163 So.2d 760 (Fla. 1st DCA 1964). See also Winner v. Sharp, 43 So.2d 634 (Fla.1950). f. Apportionment of whether (identify additional person(s) or entit(y)(ies)) [was] [were] also [negligent] [ (specify other typ......
-
Walt Disney World Co. v. Goode
... ... Canty, 359 So.2d 430 (Fla.1978) (record must affirmatively show the impropriety of a verdict for the verdict to be declared excessive). In Winner v. Sharp, 43 So.2d 634 (Fla.1949) in an opinion written by Justice Terrell, the court said: ... Those who have not brought a child into the world and ... ...
-
Bravo v. U.S.
..."are largely speculative and difficult of determination, but no one's estimate is better than [the factfinder]'s." Winner v. Sharp, 43 So.2d 634, 636 (Fla. 1950). The factfinder is simply required to award an amount it finds reasonable in light of the Although the award of non-economic dama......