Woods v. Atlantic Coast Line R. Co.

• Decision Date: 18 October 1930
• Citation: 100 Fla. 969,130 So. 601
• Parties: WOODS et al. v. ATLANTIC COAST LINE R. CO.
• Court: Florida Supreme Court

130 So. 601

100 Fla. 969

WOODS et al. v. ATLANTIC COAST LINE R. CO.

Florida Supreme Court, Division A.

October 18, 1930

Error to Circuit Court, Pinellas County; John U. Bird, Judge.

Action by Ruby Woods, J. C. Johnson, and others, by their next friend, C. C. Powell, against the Atlantic Coast Line Railroad Company. To review an order setting aside verdict for plaintiffs other than Ruby Woods and awarding a new trial, said plaintiffs bring error.

Affirmed.

COUNSEL

Anna A. Krivitsky, of Tampa, for plaintiffs in error.

Kelly &amp Shaw, of Tampa, for defendant in error.

OPINION

ELLIS J.

The plaintiffs in error by their next friend brought an action against the Atlantic Coast Line Railroad Company, a railroad corporation, for damages for the wrongful death of their father, William H. Johnson, alleged to have been killed by the defendant at a railroad crossing in the town of Dunedin on the night of July 18, 1925, at about 8:30 o'clock. The action was brought in the circuit court for Pinellas county two years thereafter. At the time of bringing the action the plaintiffs were minors. During the trial the court permitted a nonsuit to be taken by Ruby Woods, one of the plaintiffs. A verdict was rendered for the remaining plaintiffs in the sum of $800, which upon motion of the defendant was set aside and a new trial awarded. A writ of error was taken by the plaintiffs to that order.

The declaration alleges that the death of Johnson was caused by the defendant in the careless and negligent operation of its train at the crossing which is known as the Tilden Street Crossing.

The defendant pleaded not guilty. The trial judge granted the motion for a new trial because he was of the opinion that the evidence was insufficient to support the verdict. The motion was granted although the court had denied a motion by the defendant for a directed verdict in its behalf. There was no inconsistency in this action, the trial court being of the opinion that the verdict did not accord with the manifest weight of the evidence and the substantial justice of the case. See Florida Power Company v. Cason, 79 Fla 619, 84 So. 921.

The doctrine has often been announced by this court that a large discretion should be accorded to the trial court in granting a new trial, and that a stronger showing is required to reverse an order allowing a new trial than to reverse one denying it. Aberson v. Atlantic Coast Line R. Co., 68 Fla. 196, 67 So. 44; Anthony Farms Co. v. S. A. L Ry., 69 Fla. 188, 67 So. 913; Carney v. Stringfellow, 73 Fla. 700, 74 So. 866; Cheney v. Roberts, 77 Fla. 324, 81 So. 475.

In such case the record should affirmatively show an abuse of sound discretion or that some settled principle of law has been violated to warrant an interference by this court with the order. Anthony Farms Co. v. Seaboard Air Line Ry., supra.

Even where there is a conflict of evidence the order granting a new trial will not be disturbed in the absence of abuse of discretion and violation of settled law. Carney v. Stringfellow, supra; Orchard v. Charlotte Harbor & N. Ry. Co., 66 Fla. 353, 63 So. 717. See also Connor v. Elliott, 59 Fla. 227, 52 So. 729; Zackary v. Georgia F. & A. Ry. Co., 62 Fla. 419, 56 So. 686; Acosta v. Gingles, 65 Fla. 507, 62 So. 582; Louisville & N. R. Co. v. Wade, 49 Fla. 179, 38 So. 49; De La Vallina v. De La Vallina, 90 Fla. 905, 107 So. 339.

There are three grounds upon either of which the court under the rule above announced may have granted the motion with propriety.

The first ground is that the evidence is by no means conclusive that Johnson as injured by the train of the defendant company and that his death resulted from such injury. The evidence as to the cause of his death was circumstantial but by no means conclusive that it resulted from injury by the passing train. Nearly an hour and a quarter elapsed after the train crossed Tilton Street Crossing before the body was found. When found it was cold and, as one witness said, stiff. Yet the body was found near the crossing about eight or ten feet south of the street which was one of the frequently used highways. Wounds upon the body indicated that the man may...