Opinion
September 29, 1950. Rehearing Denied January 16, 1951.
Appeal from the Circuit Court for Dade County, Stanley Milledge, J.
Blackwell, Walker Gray and Robineau, Budd, Levenson Van Devere, all of Miami, for appellants.
Nichols, Gaither Green, Miami, for appellee.
On August 1, 1945, the plaintiff, Patsy Ann Freund, age three was struck and injured by a truck then operated by Joseph Roberts, and owned by Robert Burns. Joseph Roberts, the driver of the truck, at the time was employed by the Benner Box, Inc. Robert Burns was doing business at the time under the trade-name of Gulf Waste Paper Salvage Company, not incorporated. The child was injured between 75th and 74th Streets, North West, 2nd Avenue, in the City of Miami.
The child when injured was at a point about midway between 75th and 74th Streets and a little west of the center of the Avenue, and was walking apparently from the east side to the west side of the Avenue. The driver of the truck was traveling south on the west side of the Avenue and the child was on his left and it is clear that the truck driver failed to see the child and did not realize that the child had been injured until he had traveled some distance. It is accurate to state that the truck driver was not speeding or driving recklessly at the time of the injury, but was proceeding in a lawful manner.
The only eyewitness to the accident was Orilda Kelly, a colored man about forty years of age. In the trial below it developed that the witness Kelly made conflicting statements about the accident — one statement was to the effect: "I saw the kid walk out from the sidewalk and walk right into the truck." On page 280 of the transcript Kelly testified that he saw the child standing in the street or avenue as the truck proceeded south. "She was standing as the truck got by me, she was standing." "Q. And she came in contact with the left rear wheel of the truck as the truck was going by? A. Yes. Q. The truck driver never did know that the child was hit as far as you know? A. He said he didn't know." On page 288 of the record Kelly stated: "One thing I see in there (the signed statement) where it said that the child ran into the side of the truck. I don't remember saying that."
Two suits were brought as a result of the accident — one in the name of the injured infant, by its father and next friend, and the other in the name of the father, William Joseph Freund. The declaration charged that "Joseph E. Roberts, employee of Benner Box, Inc., who was then and there acting within the scope of his employment. * * * Joseph E. Roberts so carelessly and negligently drove and operated the said motor vehicle that it ran into, upon and against the infant daughter of the plaintiff, knocking said infant to the ground and driving over the body of said infant * * *". Pleas of not guilty, contributory negligence and special traverses of the declaration made the issues submitted to a jury, which resulted in a verdict for the infant in the sum of $20,000.00 and the sum of $5,000.00 for the father. The cases were consolidated for trial.
It is contended that the rights of the appellants were prejudiced during the progress of the trial when Orilda Kelly, a witness for the plaintiff below, was being cross-examined by counsel. The following occurred:
"Q. (Mr. Blackwell) Would you recognize it if I showed you the paper he was writing on? Let's see if we have it here. Do you remember him making that diagram and writing that out while he was talking to you? A. (Orilda Kelly) It was a white piece of paper. Now, what it looked like, I wouldn't remember.
"Q. (Mr. Blackwell) You wouldn't deny that this is the paper? The Court: He says he doesn't know anything about it. A. (Orilda Kelly) I can't say for sure whether that is the paper.
"Q. (Mr. Blackwell) Now, Orilda, I want you to read this statement on which you have identified your signature, Defendants' Exhibit A-2. I want you to read it over and see if it refreshes your memory.
"The Court: Read it yourself. Let me suggest that we call a recess, and he can read it during the recess.
* * * * * *
"Q. (Mr. Blackwell) You stated the child ran from the schoolyard into the street? A. (Orilda Kelly) I see that in there, yes, but I didn't see the child run at all.
"Q. (Mr. Blackwell) You stated that at about five P.M. —
"The Court: I don't believe this witness has said that he has made those statements. Let's get that straight. He signed the statement, but that is not the same thing as having made the statement.
"Mr. Blackwell: I have asked him if he made a statement.
"The Court: He said he did make a statement.
* * * * * *
"Q. (Mr. Blackwell) Is this the statement you are referring to as the statement you made? A. (Orilda Kelly) It sounds like some of it, all right. I remember some of the things in there that I said, yes, but I don't remember saying that the child ran into the truck, because I didn't see the child run.
"Q. I am not talking about the contents of the statement, but you did make and sign a statement after the accident occurred? A. Yes.
"Q. You have already told us that. A. Yes.
"Q. And this is your signature on the bottom of each page? A. Yes.
"Q. And this is the statement you made? A. Yes.
"The Court: Let's don't take advantage of this witness.
"Mr. Blackwell: I am going to have to take an exception in the record to that statement.
"The Court: Mr. Blackwell, this witness has never said — as I understand, that is not in his handwriting.
"Mr. Blackwell: May we excuse the jury?
"The Court: Yes, I will be glad to." (Thereupon the jury retired from the courtroom and the following proceedings were had in the absence of the jury:)
"Mr. Blackwell: Of course, the record discloses that it is cross examination, and the record also discloses that the witness has examined the statement in detail and has pointed out voluntarily the only thing in it that he criticizes as not being his statement or that he doesn't remember saying. He has pointed out one sentence which he says he doesn't remember saying, and I was just about to question him as to that. Now the jury has been told that our cross examination is unfair, and I think that that puts us in an exceedingly embarrassing situation.
"The Court: It is a situation you produced yourself, Mr. Blackwell.
"Mr. Blackwell: I can't agree with Your Honor on that.
"The Court: All right. Are we through now? Bring the jury back."
It is well established that the cross-examination of a witness is one of the safeguards to accuracy and truthfulness. When a witness has been examined in chief, the other party has a right to cross-examine for the purpose of ascertaining the truth of matters about which the witness testified. The scope of cross-examination, among many other things, is the interest of the witness in the litigation, his motives, his inclinations, prejudices, his means of obtaining a correct and certain knowledge of the facts about which he has borne testimony, his power of discernment, memory and description. The purpose of the cross-examination is to test the truth of witness, to sift, modify, or explain what has been said, to develop new or old facts in a view favorable to the cross-examiner, or even to discredit the witness. See 58 Am.Jur. par. 610. As we study the record, the alleged contradictory statement of the witness, Orilda Kelly, was an issue of fact for the jury to decide. We are unable to agree with counsel that the remarks of the trial court were prejudicial or such a proceeding as would authorize us to award a new trial. Likewise, this holding is applicable to the remarks of the trial court when one of the physicians was testifying at the trial.
It is contended that the following instruction given by the trial court is reversible error: "If you find from a preponderance of the evidence that the minor child Patsy was guilty of contributory negligence and was of sufficient age to appreciate negligence by placing herself in a dangerous position in the street, she may still recover a verdict from the defendant if the driver knew, that is, Mr. Roberts knew, or by the exercise of reasonable diligence, could have known of the perilous position of the plaintiff, and still had an opportunity to avoid injury to the child, but wholly failed to avail himself of this opportunity and thereby caused the injury to the child."
It will be observed that the foregoing is an excerpt taken from context of the whole instructions as given by the trial court on the question of contributory negligence. In passing upon the propriety of instructions as given, the applicable rule enunciated on many occasions is that instructions on the point at issue must be considered in their entirety. The challenged instruction went to the point of contributory negligence and must be considered in light of all other instructions given on this point. Wharton v. Day, 151 Fla. 772, 10 So.2d 417; Bassett v. Edwards, 158 Fla. 848, 30 So.2d 374.
We have reviewed assignments based on other instructions given by the trial court of its own motion and those given by the trial court upon the request of counsel for plaintiffs-appellees; also many instructions requested in writing by counsel for defendants-appellants but were not given by the trial court for various reasons. These adverse rulings entered below have been carefully reviewed here and the authorities cited in the briefs of counsel for appellants have been examined. We have not been able to find error in the record and the burden of showing error by law is cast upon the appellants.
Affirmed.
ADAMS, C.J., and SEBRING and HOBSON, JJ., concur.