Wolfe Construction Co. v. Ellison , 127 Fla. 808 ( 1936 )

In an action filed by defendant in error as plaintiff below, the plaintiff in error as defendant below, went to trial on two pleas: "Not guilty" and "contributory negligence." The jury's verdict against the H.E. Wolfe Construction Company, Inc., found damages in the amount of $10,000.00, which amount the court below ordered remitted to the sum of $7,500.00. Barco Motors, Inc., which was a joint defendant with H.E. Wolfe Construction Company, Inc., was found not guilty. The court below, in denying a motion for a new trial on behalf of H.E. Wolfe Construction Company, Inc., recites in the order that: "It is the view of the court that the evidence is ample to sustain a verdict against the defendant."

The action as originally filed was against both the owner of a car in which plaintiff was riding at the time of her injury, and against H.E. Wolfe Construction Company, Inc., whose alleged negligence in building and maintaining a barricade across the public highway was the cause of the injury sued for. The gist of the actionable negligence alleged against the H.E. Wolfe Construction Inc., in the several counts of the declaration is in substance that said defendant erected and maintained a barricade across the Dixie Highway near the south line of Broward County consisting of a solid wall of boards approximately 70 inches high and approximately 6 feet, 2 1/2 inches, in width, placed in the center of said highway, behind which was piled a large amount of rock and upon which barricade defendant caused to be placed three small red lights in such a manner and so arranged as to resemble a truck upon said highway, but without placing or causing to be placed any other light or warning of said barricade upon said highway which would be cautionary to automobiles using said highway in the night time unaware of the existence of the barricade.

The evidence in the case is substantially to the following effect:

The plaintiff, Nila Larue Ellison, aged nineteen years, wife of W.A. Ellison, living in the City of Lake Worth, Florida, on the evening of July 13, 1934, with her husband, was invited by J.O. White and his wife to go riding with them in an automobile which White had obtained from an agent of Barco Motors, Inc., for the purpose of demonstration. Plaintiff and her husband occupied the rear seat of the automobile and J.O. White and wife occupied the front seat with White driving.

They proceeded south upon the Dixie Highway commonly known as the Federal Highway until near the south line of Broward County, at which place the highway, a smooth concrete road being the main artery of ingress and egress to the City of Miami, makes a curve from the south to the southwest, then turns due south. White was driving between forty and fifty miles per hour as he entered the curve; he took the curve on the inner circle or left hand side of the road, at some point in making this curve or as he came out of it, he observed two small red lights ahead of him upon the highway, which to him appeared to be the rear end of a truck; the highway was twenty feet wide and having completed the curve on the left hand side, he drove his car at more or less a diagonal course across said highway, gradually making the right hand side and in doing so the headlights of his car did not shine upon the object retaining the two small red lights, which he presumed to be the rear end of a truck until his car was fully straightened out in the highway and pointing to the south, at which time he was then within about fifty feet of the two small red lights which he previously observed. He then discovered from his headlights that there was a barricade in the highway upon which these two small red lights were placed. He immediately applied his brakes and attempted to steer his car to the left, but on account of rock and gravel on the highway his car skidded and rolled sideways into the barricade. He testified he could have stopped the car within the distance from which he first discovered the barricade had it not been for the rock scattered upon the highway at that point.

This accident occurred about 9:30 o'clock at night. The barricade was constructed and maintained by the defendant, H.E. Wolfe Construction Company, Inc., and had been placed in the highway a few days before the accident. The barricade consisted of both boards and rock; the boards were a solid wall six feet high and eight feet wide, braced behind with timbers to give it a base and hold it in position. This boarded part of barricade was placed in the center of the highway a few feet south of the south line of Broward County and within the County of Dade. Directly opposite this barricade, to the east, was a filling station, the driveways or entrance to which extended out to and connected with the highway. On the night of the accident, a small sign used by the filling station stood in the driveway next to the highway, but there was room by which a car might pass between the barricade and the small sign. Directly behind this wooden portion of barricade, the defendant had piled about four and one-half tons of Ojus rock, which scattered out over the highway and beyond the ends of the boarded part of the barricade covering all of the twenty-foot highway except about eighteen inches on either side. The actual construction work on the road was a mile or more south of the barricade and automobiles and trucks of the defendant, with perhaps a few automobiles by residents living south of the barricade, who had no other way of getting in and out, passed back and forth through the space between the filling station and the barricade to the north where the highway was open, there being some testimony that a machine might be able to get by the barricade on the west side.

At a point a short distance north of the barricade, possibly thirty or forty feet, is a paved road connecting at right angles with the highway on which the barricade was built and extending west over the F.E.C. Railroad tracks connecting with a paved highway running parallel with the highway on the east side of the tracks. This detour sign was intended to turn the traffic coming from the north toward Miami across the railroad to the highway on the west side of the tracks. At this crossing and for some little distance north, the highway is very wide as an asphalt road extending in a northerly direction connects with the Federal Highway in a V-shaped manner but ends at the crossing, which, as above stated, was thirty or forty feet north of the barricade and the highway at point of barricade was a twenty-foot highway. Neither J.O. White, the driver of the car, nor plaintiff had been upon the highway since the erection of the barricade nor did either of them know of the existence of the barricade.

White was an experienced driver of many years and had owned and operated cars of the type he was driving on this night. He had been to Miami over this highway nine days before or on the 4th day of July. The barrier was not on the highway at that time but he knew repair work was being done on some highway farther south, but on his last trip, July 4th, no barricade had been constructed. As a result of the collision, plaintiff, a passenger in the car, sustained serious and permanent injuries.

When a case comes to this Court on writ of error to a judgment at law the assignments of error, and the assignments of erroralone, constitute the sole basis for a reversal of the judgment, if it be reversed at all. Such assignments of error in the appellate court are in the nature of a declaration against the correctness of the judgment appealed from. Such judgment, in all other respects, is presumed to have been validly entered and correctly arrived at by due course of legal procedure. Davidson v. Bezant, 101 Fla. 1296, 132 Sou. Rep. 488; St. Andrews Bay Lumber Co. v. Bernard, 106 Fla. 235, 143 Sou. Rep. 160; Streeter v. State,89 Fla. 400, 104 Fla. 858.

The sole predicate for an assignment of error is an incorrect ruling of the trial judge on some question of evidentiary, procedural or pure law presented to him in due course.

Assignments not predicated on a court ruling have no place in the record. Gilcrease v. State, 94 Fla. 1189, 116 Sou. Rep. 501.

In the present case there are, under the foregoing rules of law, but two valid assignments of error that can be considered, as follows: (1) ASSIGNMENT NUMBER FIVE: The Court erred in refusing the motion of the defendant H.E. Wolfe Construction Company, Inc., for a directed verdict at the close of plaintiff's case; (2) ASSIGNMENT NUMBER SIX: The Court erred in denying the motion of H.E. Wolfe Construction Company, Inc., for a new trial.

The motion for a new trial challenges as erroneous nothing in the court's charges given or refused. The sole grounds of that motion are the purely formal ones, (1) that the verdict is contrary to the law; (2) that the verdict is contrary to the evidence; (3) that the verdict is excessive. The proposition that the court erred in refusing to direct a verdict for defendant atthe close of plaintiff's case, although separately assigned, appears also in the motion for a new trial.

In my opinion the judgment for plaintiff should be affirmed.

Here the cause of action sued on was an alleged concurrence of negligence on the part of H.E. Wolfe Construction Company and Barco Motors, Inc., the owner of the car in which plaintiff was riding. Plaintiff herself was a mere guest in the car. So contributory negligence on the part of the car driver, even if we assume that there was such negligence, cannot be imputed to her. In this particular this case is on all fours with Seaboard Air Line Ry. Co. v. Watson,94 Fla. 571, 113 Sou. Rep. 716, and she is entitled to recover, even if Barco Motors, Inc., through its agent and driver, was contributorily negligent in running into the highway barricade under the circumstances shown.

But the jury found Barco Motors, Inc., not guilty of any kind of negligence, contributory or otherwise, and judgment to that effect on the jury's verdict has been entered. That judgment, being a part of the proceedings before us on appeal seemingly is a conclusive adjudication to the effect that Barco Motors, Inc., was not guilty of any negligence that was the proximate cause of plaintiff's injury. And by the same token such judgment operates as an adjudication that J.O. White, the driver for Barco Motors, Inc., was likewise not guilty of any negligence. The last proposition is so because an adjudication that the principal did not commit a tort through the alleged agent mentioned in the declaration must necessarily mean that the agent was likewise not guilty. Williams v. Hines, 80 Fla. 690, 86 Sou. Rep. 695.

The contention that H.E. Wolfe Construction Company, Inc., is not liable as a matter of law means in substance that although the jury acquitted Barco Motors, Inc., of any negligence at all, proximate or contributory, as a cause of plaintiff's injury, and although the court below has duly entered final judgment to that effect, thereby making the jury's finding conclusive in law on the proposition that the alleged joint tort feasor, Barco Motors, Inc., was without any fault at all, yet this court on writ of error, without having before it any assignment of error or other attack on the judgment rendered in the court below in favor of said Barco Motors, Inc. (as one of the two alleged jointly liable tort feasors) will in effect disregard the legal significance of the Barco Motors, Inc., judgment of acquittal and thereupon convict it upon a trial de novo in the Supreme Court, notwithstanding an unchallenged judgment of the Circuit Court declaring it wholly blameless for plaintiff's injuries.

This is necessarily so, because plaintiff was admittedly a mere guest in the car of Barco Motors, Inc., one of the alleged jointly liable tort feasors charged with having occasioned her injuries and there is nothing tending to show that she was at all guilty of any personal contributory negligence on her own part. It follows, therefore, as a matter of course, that either Barco Motors, Inc., or H.E. Wolfe Construction Company, Inc., must have become liable to plaintiff under the circumstances. Especially is this true in view of the undenied fact that she was injured and that her injury was occasioned by either the sole negligence of Barco Motors, Inc., or the sole negligence of H.E. Wolfe Construction Company, Inc., or by a concurrence of negligence on the part of both of these defendants. So a reversal of the judgment on a finding that there was negligence on the part of Barco Motors, Inc., and that such negligence of Barco Motors, Inc., and its driver, J.O. White, was the sole proximate cause of the injury sued for, is in derogation of the unreversed and unchallenged judgment of the Circuit Court that found Barco Motors, Inc., wholly without negligence and acquitted it, and upon the principles laid down in Williams v. Hines, 80 Fla. 690,supra, likewise acquitted the driver, J.O. White, of any such negligence.

The motion for a directed verdict was made at the close of plaintiff's case, not at the close of all of the evidence. At that point in the trial the case was clearly not within the rule of the Utah case (Nielsen v. Christensen-Gardner, Inc., 85 Utah 79, 38 Pac. Rep. [2nd] 743) so confidently relied on by plaintiff in error and the majority opinion as the sole supporting authority for reversal. This is so because plaintiff's evidence alone, at the time the motion for directed verdict was interposed, was clearly not of a character to resolve the sufficiency of the barricade warnings into a question of law for the court to decide at that stage of the trial by taking it away from the jury. On the contrary, practically the whole of defendant's testimony adduced after plaintiff rested was directed to the end of trying to make out a defense in law within the terms of the Utah decision just cited. So there was clearly no error in overruling the motion for a directed verdict at the close of plaintiff's case, whatever may have been the propriety of such a motion at the close of all of the evidence. But no motion for a directed verdict was made at the close of all of the evidence, or if there was, no error has been assigned concerning it. Furthermore, had there been such a motion then made, the trial court could only have granted a motion for a directed verdict in favor of H.E. Wolfe Construction Company, Inc., by finding as a matter of law at that time that Barco Motors, Inc., was solely guilty, since it is evident from the testimony that there had been established no contributory negligence on the part of plaintiff as a guest in the car. That J.O. White was driving the car in question as the agent of Barco Motors, Inc., at the time of the collision with the barricade (although originally denied by a special plea) was also established beyond question, is equally clear.

So at the time the case went to the jury it was submitted to the jury under the following instruction given by the trial court — an instruction that was no wise excepted to by defendant H.E. Wolfe Construction Company, Inc., at the time it was given, nor at any other time. Nor has its correctness been questioned in the briefs filed by plaintiff in error in this court:

"2. The Court instructs the jury that it is the duty of any corporation or person who constructs and maintains a barricade upon the public highway of this state to use such reasonable care and caution in the construction and maintenance of said barricade as will not result in injury to persons lawfully using said highway in the usual and customary manner and if you believe from a preponderance of the evidence in this case that the defendant, H.E. Wolfe Construction Company, did construct and maintain a barricade upon the public highway, as charged in the plaintiff's declaration, then you are instructed, as a matter of law, that in arriving at a conclusion of whether or not said defendant did use reasonable care and caution in the construction and maintenance of said barricade, you should consider the manner of construction of said barricade, the materials used in the construction, the warnings, if any, placed upon or near said barricade, the sufficiency of said warnings, if any, to persons in the lawful use of said highway, the kind and amount of traffic, if any, upon said highway, the speed or lack of speed with which traffic, if any, ordinarily moved upon said highway at point of said barricade, the width and surface of the highway at and near said barricade, the curves or lack of curves in the highway near said barricade, the lights or lack of lights upon or near said barricade, the sufficiency or insufficiency of said lights, if any, to give warning of the presence and location of said barricade, together with all the other facts in the case as shown by the evidence in determining the question of negligence or lack of negligence on the part of the defendant, H.E. Wolfe Construction Company, in this case."

The charge in question was equivalent to a finding by the Court that the adequacy of the barricade lighting to constitute a proper warning sufficient to avoid the allegation of negligence was a jury question under the evidence and not a pure question of law as argued by plaintiff in error. By failing to except, or object to the charge at the time it was given, plaintiff in error has become estopped to now question in the appellate court for the first time a ruling of the trial court that is not covered by an assignment of error. McSwain v. Howell, 29 Fla. 248, 10 Sou. Rep. 588; Hartford Fire Insurance Co. v. Hollis, 58 Fla. 268, 50 Sou. Rep. 985.

Assuming the charge of the court to correctly state the applicable law of the case, as we must, inasmuch as no exception was taken to it, a verdict of the jury finding the facts within the rule of law thus charged cannot be said to be contrary to law. A verdict in accordance with the unexcepted to charges of the trial court is not a verdict contrary to law, since the unexcepted to charges of the court constitute the law of the case for the purposes of the trial and subsequent appeal, if one is taken. 20 Ruling Case Law, par. 55, at page 271. Therefore the verdict was not contrary to law.

That it was not contrary to the weight of the evidence qua proof of the matters required to be found, as facts within the terms of the unexcepted to charges given, was affirmatively found by the trial judge, and, indeed, no contrary finding is intimated in the majority opinion. So the verdict was not against the evidence.

It is unquestionably the duty of a construction company to place and maintain during the time of darkness such warning signals as will enable automobilists driving in the usual, ordinary and customary way and with ordinary care to discover unusual and not to be expected hazards or dangers placed in the highway by the construction company. Melican v. Whitlow Construction Co. (Mo.) 278 S.W. 361; Evans v. Shea Bros. Construction Co., 194 N.C. 31, 138 S.E. Rep. 411; Owens v. Fowler, 32 F.2d 238; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 Sou. Rep. 610.

The driver of a vehicle on the highway is not under a duty to be on lookout for obstructions; but in absence of knowledge has the right to presume the highway to be free of foreign barricades and the like and to drive accordingly. Morgan Hill Paving Co. v. Fonville, 119 Sou. Rep. 610, supra. O'Rourke v. McConaughy (La.), 157 Sou. Rep. 598; Huddy Encyclopedia Automobile Law, Vol. 9-10, Section 242, page 381, et seq.

It is also the general and indeed the universal rule in the United States, and especially in the State of Florida, that, in a suit for personal injuries to a mere passenger in an automobile brought against a highway contractor, resulting from the defendant's alleged negligent failure to maintain proper lights on detour sign placed by him obstructing the highway, questions whether driver was operating automobile with due care at time of collision with contractor's detour barricade, and whether highway contractor had discharged his duty of maintaining proper andadequate lights and signals on the highway obstruction are not matters of law for decision by the court but are for the jury to decide under proper instructions. Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 Sou. Rep. 610, supra. Melican v. Whitlow Construction Co., 278 S.W. Rep. 361, supra; Stockton Automobile Co. v. Confer., 154 Cal. 402, 97 Pac. Rep. 881; City of Albany v. Black, 124 Ala. 359, 108 Sou. Rep. 49. The general rule to the foregoing effect is thus succinctly stated by the Supreme Court of Alabama as follows: "It must of course be conceded that, as a general rule, the sufficiency of signals or barriers to give reasonable warning or security against existing danger, especially with respect totheir character, number and arrangement, is a question of fact for the jury." (Emphasis supplied.) Kearns v. Mobile Light R. Co., 196 Ala. 99, 71 Sou. Rep. 993.

Now in the present case, it is conceded by the plaintiff in error, that any mere contributory negligence of J.O. White, driver for Barco Motors, Inc., in driving the automobile against the barricade in question, cannot be imputed to Mrs. Ellison, the plaintiff, who was a mere guest in the car at the time she was injured. "A passenger or guest in a vehicle is not barred from recovery for harm resulting from the negligence of a third person by the contributory negligence of his carrier or host." A.L.I. Torts (Negligence), Sec. 490, page 1272. Therefore, even if the driver, J.O. White, was negligent in his operation of the vehicle in which Mrs. Ellison was riding, such negligence, unless the sole proximate cause of the collision with the barricade constructed by the highway contractor, cannot defeat plaintiff's guest's recovery against the defendant contractor. Nielsen v. Christensen-Gardner, Inc., 85 Utah 79, 38 Pac. Rep. 2d 743.

A critical examination of the last cited case (Nielsen v. Christensen-Gardner, Inc., supra, which is the sole reliance of the plaintiff in error, and the only authority that has been cited to bolster up the contention that Wolfe Construction Co., Inc., is not liable as a matter of law shows that it is not in point on the present controversy.

But even if it were, it is an authority from a foreign jurisdiction greatly removed from the legal traditions of the State of Florida. Interpreted as contended for by plaintiff in error, the Utah decision is altogether out of harmony with the clear-cut decisions of our neighboring State Alabama in Morgan Hill Paving Co. v. Fonville, supra, and Fearns v. Mobile Light R. Co., supra, if it may be construed to hold that a debatable controversy with respect to the character,number and arrangement of lights on a highway barricade presents a question of law for the court to decide, instead of one of fact to be tried by the jury in a case like the present. Here there is proof in evidence ample to support a finding by the trial jury that the particular lights here relied on as legal warnings of barricade were inadequate and non effective for the purpose and therefore did not constitute a substantial method of notifying automobilists of the obstruction around a curve that had been erected by the contractor on one of the most traveled highways in Florida — the Dixie highway. The Alabama cases on this point are more in harmony with our own decision in Brinson v. City of Mulberry, 104 Fla. 248, 139 Sou. Rep. 792, where we recognized, by reversing a judgment based on a directed verdict for defendant, that such questions as are here presented are questions of fact and not questions of law, where there has been raised a substantial issue of the adequacy of a protective means such as the sufficiency of lights on a place of danger.

The trial court submitted to the jury the question of the adequacy of the warning lights on the contractor's barricade to warn automobilists under the circumstances of the collision. The barricade involved in this case was placed around a curve on a state highway especially built and invited to be used by the public at a speed of 40 to 50 miles an hour. The Utah case (Nielsen v. Christensen-Gardner, Inc., supra) involved a barricade admittedly visible to automobile drivers at 600 feet, placed on a straight highway that had been ordered entirely closed by state authorities for the purpose of general repairs. No issue was raised in the Utah case as there was here by proof presented to the effect that the nature of the lights on the barricade were calculated to mislead or deceive automobile drivers as to their true character and purpose. So the Utah case in point of fact is not in point on the present controversy, even if it be conceded that it is not out of harmony with our own and the Alabama decisions with respect to the functions of the court and the jury with respect to the right to decide the issue of adequacy of warning.

The unfortunate consequence of a decision refusing to review the judgment as an entirety so that the cause can proceed to trial de novo is that it would leave this young woman plaintiff, whose body has been negligently injured for life by someone, in the incongruous plight where she could not recover damages from anyone. This is so because she could not recover from Barco Motors, Inc., without reversal because the Circuit Court has entered its judgment to the effect that H.E. Wolfe Construction Company, Inc., alone is culpable for the injury. Without disturbing the Circuit Court judgment in favor of Barco Motors, Inc., plaintiff likewise cannot recover any damages from H.E. Wolfe Construction Company, Inc., even though in the opinion of some of the justices of the Supreme Court Barco Motors Inc., and its driver, J.O. White, should have been held responsible as the sole proximate cause of the plaintiff's injuries. Thus in a situation where one tort feasor at least is admittedly guilty if the other is not, both would be permitted to escape liability altogether, if the judgment is not reversed as a whole — a result which is so contrary to every conception I have of practical justice that I cannot subscribe to it. I therefore concur in the opinion and conclusion of Mr. Chief Justice WHITFIELD, although I prefer affirmance of the judgment as entered.

ON REHEARING