Merchants Transportation Co. v. Daniel

149 So. 401, 109 Fla. 496

• Court: Supreme Court of Florida
• Decided: April 22, 1933
• Status: Published

Opinions

Davis, C. J.

Annie Daniel, a widow, recovered a $5,000.00 judgment against Merchants Transportation Company, a corporation, for the wrongful death of her husband, Emmett Daniel, who at the time of his death, was employed by the County Commissioners of Polk County as a road foreman, and engaged in doing certain road repair work in District No. 4 of Polk County, when he was struck and killed by defendant’s truck. The contention here on writ of error is, that upon the whole evidence the Court should have taken the case from the jury by directing a verdict for defendant, and that failing to do so, that it erred in the giving of certain charges to the jury which plaintiff in error asserts were harmfully erroneous.

Insofar as conflicts in the evidence are concerned, they have been settled in plaintiff’s favor by the jury’s verdict. This Court is committed by a long line of its decisions to the doctrine that the Supreme Court ought not to exercise its powers to reverse a judgment solely on the facts, except with caution and discrimination, and only after careful consideration of the evidence in its most favorable aspect to the party in whose favor the verdict was rendered. The test is not what the Justices of the Supreme Court would have decided, had they been on the jury, but whether or not they as members of an appellate court, viewing the case in its most favorable aspect toward the successful litigant, can say that the jury as reasonable men could not have found the verdict they did and that therefore the verdict, although approved by the trial judge, is wrong, and that by reason thereof the judgment should be accordingly reversed for a new trial. Parrish v. Clark, 107 Fla. 598, 145 Sou. Rep. 848.

• And in passing upon defendant’s motion for a directed verdict, the rule is that the motion must be' considered and ruled on by the trial judge in the light of its admission not only of all of the facts stated in the evidence adduced, but also its admission of all conclusions therefrom favorable to the adverse party, that a jury might fairly and reasonably infer from the evidence. In directing a verdict the court is governed practically by the same rules that are applicable to demurrers to the evidence. Gunn v. Jacksonville, 67 Fla. 40, 64 Sou. Rep. 435; Stevens v. Tampa Electric Co., 81 Fla. 512, 88 Sou. Rep. 303; Estes v. Manwarren, 100 Fla. 738, 129 Sou. Rep. 917; Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 Sou. Rep. 521.

Viewing the testimony and other evidence in this case in its most favorable aspect to the plaintiff below, the jury would have been warranted in finding that the driver of the truck had a clear view of the bridge where deceased was working, for a distance of 180 to 200 feet before reaching it; that two of the fellow workmen of deceased threw up their hands, shouted to the truck driver, and attempted to warn the driver to stop long before reaching deceased; that such warning was given at a time when the truck was 175 feet away from the bridge where deceased was working; that although there was no unobstructed view of the. bridge for a considerable distance up the road, that the driver of the truck did have a clear view of 180 to 200 feet looking toward the bridge before reaching it; that although the driver claimed that he was only driving his truck around the curve at the modest speed of 25 miles or so per hour, and could, so it was testified, at the speed he said he was driving, have stopped his truck by the efficient brakes with which it was equipped, inside of 50 feet after the brakes’ application, that nevertheless, the truck was so driven around the curve in the road and at such speed that, after the brakes were applied and the wheels of the vehicle locked by such application, it struck and dragged ahead of it a large pile of lumber two feet high, '25 or 30 feet to the open bridge, broke a bridge post, broke a 2 x 8 timber as well as an 8 x 10 timber, and then went, with 'its brakes still locked and its wheels still dragging 10 to 12 feet further into the open bridge itself where Emmet Daniels was killed.

•' The inference is also to • be drawn from the evidence that the driver of the truckj although charged with knowledge that he was driving his truck on a curve in the highway where more than ordinary care and diligence would likely be required for his own safety and that of others, by bringing his truck under his entire control and keeping a sharp look-out in the direction of the bridge, nevertheless was not keeping such a look-out .that he could see two: workmen plainly visible while attempting to flag him before he reached the bridge, nor two other workmen on the bridge with the man who was killed, until just about the moment, of-running into the bridge and causing the injury and death complained of.

Section 1318 C. G. L. (Chapter 10186, Acts of 1925, Section 1) provides that the speed of all motor vehicles shall be reduced on curves in such manner as to keep the Vehicle under the “entire” control of the driver. The effect of the statute is to' impose upon the drivers of motor vehicles the special duty to keep such a look-Out for other vehicles and persons on curves that, if the road be not' clear, “entire” • control of the motor vehicle can be exercised’ by the driver in such manner as to stop or turn the motor vehicle aside in ample time to avoid serious injury or death to others who must be anticipated as likely to be brought into view in the course of traversing a curve in a highway where the driver’s range of view is obscured by the nature of the viatic curvature and the topography of the earth thereat. 2 R. C. L. 1184. A consideration of the foregoing rule of conduct viewed in connection with-the admissions of fact implied from the evidence by defendant’s motion for a directed verdict, demonstrates that the motion was properly denied.

Defendant went to trial on several special pleas that presented the issue of contributory negligence of the deceased as related to the doctrine of “the last clear chance,” as applied to negligence cases. The contributory negligence of the deceased was alleged to have been that he, as a road foreman, was careless and negligent in attempting to' work on the bridge where he was killed in that in his work he exposed himself to danger of being struck by an approaching motor vehicle without undertaking at the same time to protect himself from such danger by placing upon the road-way, at sufficient distances in both directions from the place of danger, signs or signals or a look-out to give warning to motor vehicles driving on the highway in that vicinity that the road was closed to traffic by reason of the making of repairs to the bridge upon which deceased was engaged in working. It was also charged that deceased had ample time, before being struck, to get out of-the way of defendant’s truck, had he been reasonably alert to avoid the threatened injury he must have realized to-be. imminent when he saw the truck about to run into the' open bridge, and that therefore it was the deceased and not-the defendant’s truck driver, who had the “last clear chance” to avoid the wrongful death.

The Court charged the jury, at the request of the plaintiff,' and over defendant’s objection, as follows:

“In this case, if you should find from the evidence that the deceased, Emmet Daniel, was careless and negligent in exposing himself to danger, but that after the said Daniel had so exposed himself to danger the driver of defendant’s automobile could have avoided the injury by using ordinary care in keeping his automobile under proper control as he drove around the curve and by keeping a proper lookout ahead and that said driver failed to use such ordinary care and that his failure in this respect was the cause of the injury, then you should find for the plaintiff.”

“If you find from the evidence that the conditions made and placed around the torn-up bridge by the deceased Emmet Daniel, and his co-workers were such that any reasonably careful driver of an automobile approaching the bridge from either direction and observing reasonable care as to speed and lookout ahead would see the dangerous condition of the bridge in time to stop his car and avoid the injury, then you should find that there was no contributory negligence on the part of the deceased, Emmet Daniel.”

The party who last has a clear opportunity of avoiding an accident, notwithstanding the negligence of his opponent, is considered solely responsible for it. Such is a simple statement of the doctrine of “the last clear chance.” The last clear chance doctrine is not an exception to the general doctrine of contributory negligence. It does not permit one to recover in spite of his contributory negligence, but merely operates to relieve the negligence of a plaintiff or deceased in a particular instance, which would otherwise be regarded as contributory, from its character as such. This result it accomplishes by characterizing the negligence of the defendant, if it intervenes between the negligence of plaintiff or deceased, and the accident, as the sole proximate ■cause of the injury, and the plaintiff’s antecedent merely as a condition or remote cause. The antecedent negligence of the plaintiff or deceased having been thu's relegated to the position of a condition or remote cause of the accident, it cannot be regarded as contributory, since it is well established that negligence, in order to be contributory, must be one of the proximate causes. Davies v. Mann, 10 Mees. & W. 546, 6 Juris, Part. 2, 954; Tanner v. Louisville & N. R. Co., 60 Ala. 621; Smith v. Norfolk & S. R. Co., 114 N. C. 728, 19 S. E. 863, 923, 25 L. R. A. 287; Bogan v. Carolina Central R. Co., 129 N. C. 154, 39 S. E. 808, 55 L. R. A. 418, and notes. The doctrine of last clear chance has been heretofore followed in this State in the case of Georgia, F. & A. R. Co. v. Cox, 75 Fla. 714; 79 Sou. Rep. 276. It has likewise been followed and approved by the Supreme Court of the United States in Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270, and Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. Rep. 679, 36 L. Ed. 485.

The Courts are wide of an agreement as to the extent of the last clear chance doctrine as applied to the operation of automobiles and the like. It is certain however that there are two situations in which it is uniformly applied: (1) Assuming that a traveler has negligently placed himself in a dangerous situation upon the highway, whenever the person in control of a motor vehicle actually sees his situation and should appreciate his danger, the last clear chance rule applies without regard to the continuing negligence of‘ the traveler concurring with that of the operator up to the very instant of the injury; (2) Where the person in control of a motor vehicle, by keeping a reasonably careful look-out, commensurate with the dangerous character of the motor vehicle while in operation and the nature of the locality, could have discovered and appreciated another’s perilous situation in time by the exercise of reasonable earé to avoid injuring him, and the injury results from the fáilure to keep such look-out and to exercise such care, then the last clear chance rule applies, regardless of the injured person’s prior negligence whenever that negligence has terminated, or culminated in a situation of peril from which the exercise of ordinary care on his part would not thereafter extricate him. This latter phase of the rule applies whenever' injury results from new negligence, or from .a. continuance of the operator’s negligence after that of the injured party has so ceased or culminated. Teakle v. San Pedro L. A. & S. L. R. Co., 32 Utah 276, 90 Pac. Rep. 402, 10 L. R. A. (N. S.) 486; Nicol v. Oregon-Washington R. & Nav. Co., 71 Wash. 409, 128 Pac. Rep. 628; Moss v. E. H. Stanton Co., 75 Wash. 220, 134 Pac: Rep. 941; Bullock v. Wilmington & W. R. Co., 105 N. C. 180, 10 S. E. Rep. 988.

The last clear chance rule is not to be confused with the doctrine of comparative negligence. The latter doctrine (comparative negligence rule) is not recognized in Florida, except in certain special cases by statute. Neither is the doctrine of last clear chance applicable where the negligence of each party is concurrent. St. Louis & S. F. Ry. Co. v. Schumacher, 152 U. S. 77, 14 Sup. Ct. Rep. 479, 38 L. Ed. 361; Scharf v. Spokane & I. E. R. Co., 92 Wash. 561, 159 Pac. Rep. 797; Moss v. Stanton, supra. Last clear chance implies thought, appreciation, mental direction, and the lapse of sufficient time to effectually act upon the impulse to save another from injury, or proof of circumstances which will put the one charged to implied notice of the situation: Hartley v. Lasater, 96 Wash. 407, 165 Pac. Rep. 106.

The two charges to the jury that were complained of by defendant below, were not erroneous under the rules to which we have just adverted. To be sure, they did not undertake to discuss every phase of the law that might have been stated on the subject of the “last clear chance” rule as applied to the case at bar. But the charges were good as far as they went. If defendant desired additional instructions by way of explanation or qualification of that which had been stated, it should have prepared and requested the giving of such additional instructions. The mere failure of the trial judge to charge the jury on a particular phase of a pending case, the law of which has heen dealt with in a general way in other appropriate charges, is not reversible error in the absence of some proposal and denial of a properly requested charge. Taylor v. State, 98 Fla. 881, 124 Sou. Rep. 445.

Defendant, had it so requested, would have been entitled to a charge that, if simultaneously with defendant’s negligence the deceased had a chance to escape the injury by himself exercising ordinary diligence, and did nothing to extricate himself from danger, the doctrine of “last clear chance” would not apply. This is so because in that case deceased would have been guilty of 'concurrent negligence, which is a form of contributory negligence that bars re-, covery. Emmons v. Southern Pacific Ry. Co., 97 Ore. 263, 191 Pac. Rep. 333; Dyerson v. Union Pac. R. Co., 74 Kan. 528, 87 Pac. Rep. 680, 7 L. R. A. (N. S.) 132, 11 Ann. Cas. 207.

But such a charge as that just referred to would amount to a proper charge on the subject of “concurrent” negligence, and such a charge-as ought to have been specially requested if .defendant had desired a charge to be given on that subject as a means of informing the jury concerning-the distinction between liability under the rule as to “the last clear chance,” and non-liability under the rule as to. “concurrent” negligence. Pensacola Electric Co. v. Bissett, 59 Fla. 360, 52 Sou. Rep. 367; Turner v. State, 99 Fla. 246, 126 Sou. Rep. 158; Tindall v. State, 99 Fla. 1132, 128 Sou. Rep. 494.

There is ample evidence in the record tending to show that defendant’s truck driver was guilty of negligence in driving his truck around a curve in the road at an excessive speed not permitting of his “entire’ control of the truck. Coupled with this was circumstantial proof of his failure to keep a look-out ahead toward the place where the nature of the locality and the degree of curvature of the road suggested caution and alertness in anticipation unseen, but reasonably to be anticipated, perils on the highway to be traversed. The circumstances showed that defendant’s failure to observe due care continued up to the very instant of the accident complained of, and that it was to defendant that there was given the “last clear chance” to avoid the injury and death sued for. So the facts in evidence warranted the verdict holding defendant liable therefor, notwithstanding the fact that deceased may have been, in the first instance, guilty of negligence of his own in assuming a position of peril when he went to work on the bridge without first erecting warning signals on the highway.

And if we do' not fail to give effect to the positive testimony of deceased’s fellow workers that they attempted in due time to flag the defendant’s truck, whose driver failed to see or give heed to their warning, there is this additional evidence to refute the idea that deceased was, as to defendant as a traveler, derelict in his duty in not putting out warnings on the highway, since the actually given warning signs of deceased’s fellow workers made known as the truck approached the bridge, served under the circumstances, as an adequate substitute for the warnings otherwise omitted from the highway.

Ordinarily questions arising upon the evidence in a negligence case as to who had “the last clear chance” to avoid a particular injury alleged to have been negligently inflicted by defendant are questions of fact, and the jury’s decision thereon is final, where there is a conflict on that point in the evidence, and it appears that the jury’s verdict was rendered under appropriate instructions concerning the applicable principles of law. This was just such a case, as has been demonstrated.

Finding no reversible error in the record, the judgment of the Circuit Court should be affirmed and it will be so ordered.

Affirmed.

Whitfield, Ellis, Terrell and Buford, J. J., concur. Brown, J., concurs specially.