Opinion
May 9, 1952. Rehearing Denied June 3, 1952.
Appeal from the Circuit Court for Palm Beach County, C.E. Chillingworth, J.
Earnest, Lewis, Smith Jones, West Palm Beach, for appellant.
Adams, Blank Born, West Palm Beach, for appellee.
The parties will be referred to as plaintiff and defendant, as they appeared in the Circuit Court.
Plaintiff sued defendant demanding damages for personal injuries resulting from the alleged negligent operation of defendant's motor vehicle. Defendant plead the general issue and contributory negligence. On a jury trial, verdict was rendered for defendant. Plaintiff's motion for new trial was granted and defendant has appealed. The order granting the new trial specified three grounds of the motion which were found to be well taken. (1) That the jury capriciously disregarded the preponderance of the evidence and the law given it in charge by the Court, (2) that the jury was improperly influenced by improper remarks of counsel for defendant and (3) that the Court had erred in giving a certain indicated charge to the jury.
There is little conflict in the evidence. Defendant's Willis Panel delivery truck was properly parked on the side of a busy street at a point where diagonal parking is required. Plaintiff desiring to cross the street at this point (it was not the usual pedestrian cross-way) walked between defendant's truck and the car parked next to it and seeing traffic approaching stopped just to the rear of defendant's truck on its right side. How long she remained there is not clear. She may have merely paused or have stood for some seconds. While she was there the driver of defendant's truck began backing it into the street and struck plaintiff, knocking her down and inflicting injuries upon her. Neither the driver or plaintiff saw the other prior to the accident. The driver, before putting the truck in motion, looked through his rear view window and out the window beside him. He did not sound his horn. Whether the driver was in the truck when plaintiff passed it is not clear. The truck moved only about a foot and a half before striking plaintiff. Testimony indicates the truck was moving very slowly, however, plaintiff testified it struck her with great violence.
On this state of facts a jury might infer negligence or lack of negligence on the part of either or both parties depending upon its reaction to the minute details of the evidence which cannot be recounted here without copying the testimony. To hold that a jury could not properly find for the defendant would almost make the motorist an insurer of the pedestrian. While we are loathe to disagree with the conclusion of an able and experienced jurist who heard and saw the witnesses, we cannot avoid the conclusion, after careful study of the evidence, that the verdict is not so contrary to the testimony as to justify this Court in setting it aside.
The second ground of the motion for new trial which was sustained relates to improper remarks of counsel, some of which appear to have been in arguments to the jury which do not appear in the record. We would be constrained to affirm the order granting a new trial on this ground but for the statement of the trial judge, in his order, that he did not consider these remarks alone sufficient basis for setting aside the verdict. We accept this conclusion.
The third ground upon which the motion for new trial was granted was error in the second paragraph of that portion of the charge to the jury reading as follows:
"I am going to instruct the Jury that, in order to exercise ordinary care, one must employ its faculties in order to observe and discover the danger which may threaten him, if it is visible and obvious; or if the surrounding circumstances are such as to indicate the presence of danger to a reasonably or ordinarily careful and prudent person and that a failure to discover such visible and obvious danger when one's attention is not attracted suddenly away from him amounts to want of ordinary care.
"You are charged that if it appears from the evidence that South County Road at the point where this accident occurred was a heavily traveled thorofare, and there was immediately available an established cross-walk and traffic signals for the protection of pedestrians desiring to cross it, then if the plaintiff failed to use such facilities in attempting to cross the County Road, she is held to a higher degree of care and caution for her own safety to avoid injury to her self by motor vehicles."
It will be noted that the first quoted paragraph required the exercise by the plaintiff of ordinary care under the circumstances.
As framed the second quoted paragraph is certainly susceptible to, if it does not require, the construction that a failure to use the customary cross-walk, placed upon plaintiff the duty of using a degree of care higher than this ordinary care under the circumstances. That is not the law. Ordinary care for one's own safety may require greater precautions to avoid injury in one situtation than would by required in another. But, in cases of this kind, the degree of care — that care which an ordinary, reasonable and prudent person simularly situated would exercise — remains constant.
Had a verdict, based upon this charge, been approved by the trial judge we would probably not disturb it on appeal. In the first place, a trial judge, present throughout the trial, conscious of the atmosphere of the court room, is in a far better position than we are, to measure the influence that a particular part of the charge might have had upon the minds of the jury. In the second place, it is the duty of the appellant to make error clearly appear before a reversal is justified.
But when, as here, an experienced trial judge expresses the opinion that his charge has probably misled the jury in the light of the evidence and argument of counsel, and the charge is susceptible to two constructions, one of which is an incorrect statement of law, and the trial court has granted a new trial on this ground, it would constitute an invasion by this court of the province of that judge to hold him in error.
In Knudsen v. Hanlan, 160 Fla. 566, 36 So.2d 192, we said: "We are of the opinion that the charge as given very likely conveyed to the jury the impression that a much greater duty is imposed upon * * * [Plaintiff] * * * to use care for his own safety than is actually imposed by law; hence, we cannot hold the trial court to have abused its judicial discretion in granting a new trial because of the giving of the charge."
Affirmed.
SEBRING, C.J., and CHAPMAN and MATHEWS, JJ., concur.