Opinion
November 16, 1951. Rehearing Denied December 17, 1951.
Appeal from the Circuit Court, Pinellas County, John Dickinson, J.
Wolfe, Wightman Rowe, Clearwater, for General Ready-Mixed Concrete, Inc.
Fowler, White, Gillen, Yancey Humkey, Tampa, for Madson Plumbing Co.
Bogue Harris, St. Petersburg, for Louis H. Wheeler and Margaret K. Wheeler, his wife.
Macfarlane, Ferguson, Allison Kelly, Tampa, for Beatrice McComb Ley, as Administratrix of Estate of Frank Ellsworth McComb.
These suits stem from a common collision which occurred about 1:30 P.M., in Pinellas County, Florida, on January 13, 1950, at a point approximately one mile west of the Town of Largo at an intersection of County Road No. 694, known as "Indian Rock Road", and County Road No. 4, known as "Bay Drive". The intersection is known as "Sterling's Corner" and it is not situated within a municipality. On the occasion of the collision the signal light at Sterling's Corner was not functioning. The Indian Rock Road runs approximately north and south, while the Bay Drive Road runs east and west. Situated at the southeast corner of the intersection, supra, was a filling station at which Louis H. Wheeler and wife Margaret K. Wheeler, and Frank E. McComb and wife Gertrude H. McComb had stopped their automobile at the time or occasion of the collision. Wheeler at the time was driving the automobile and Frank E. McComb was on the front seat with him, while the ladies occupied the rear seat. Wheeler was driving north on the Indian Rock Road and stopped his car at the filling station several feet off the paved road.
It appears by the record that the General Ready-Mixed Company, Inc.'s truck, heavily loaded, was travelling in a southerly direction on the Indian Rock Road and T.S. Madson was operating his plumbing truck in a westerly direction on Bay Drive at the Sterling's Corner intersection. The plumbing truck travelling west proceeded through Sterling's Corner and after passing through the intersection executed a sharp left U turn and was headed east when the "Ready-Mixed" truck travelling south on Indian Rock collided with the plumbing truck. The two trucks, as a result of their collision, skidded south and struck the Wheeler car situated off the pavement and near the filling station. The Wheeler car (a Chrysler) was badly damaged as a result of the impact and the four occupants thereof injured, one of whom later died.
Louis H. Wheeler and wife Margaret K. Wheeler, occupants of the Chrysler automobile, each sustained injuries as a result of the impact and filed suit for damages in the Circuit Court of Pinellas County jointly against T.S. Madson, doing business as Madson Plumbing Company, and the General Ready-Mixed Concrete, Inc. Gertrude H. McComb, a passenger in the Chrysler automobile owned by Wheeler, received personal injuries as a result of the impact and filed suit jointly against the above named defendants-appellants. Frank H. McComb was a passenger in the automobile at the time and sustained injuries. He died some four months later and an Administratrix was appointed and suit was by her filed jointly against the defendants-appellants. Ervin Schnell, driver of the plumbing truck at the time of the impact, was injured and sued the General Ready-Mixed Concrete, Inc. Thus, four main suits with cross-complaints in three thereof, were consolidated by an order of the lower court and tried before a jury. The several pleadings of the parties alone approximate 58 pages.
The several acts of negligence set out in the different counts of the complaints of the plaintiffs-appellees charged that the defendant corporation, General Ready-Mixed Concrete, Inc., and defendant T.S. Madson, doing business as Madson Plumbing Company, acting by and through their servants and agents as aforesaid, carelessly and negligently drove and operated their above mentioned vehicles so that the said motor vehicles collided and ran against each other; that the force and momentum of the impact therefrom caused the motor vehicles so operated to skid and run across the said intersection and strike the motor vehicle owned by the plaintiffs then parked off the public road; that by reason of the negligence of the defendants as aforesaid in the operation of their motor vehicles plaintiffs sustained certain described injuries.
The defendants-appellants filed appropriate defenses directed to each count of the complaints of the plaintiffs and were viz.: (1) a general denial of the allegations of negligence, being tantamount to a plea of not guilty; (2) the second defense submitted the issue of contributory negligence; while a third defense, in general terms, amounted to the assumption of risk of danger on the part of plaintiffs by stopping the car at the time and place near the intersection. Testimony was received on the issues made by the pleadings and a jury, after hearing all the testimony and instructions of the Court upon the applicable law on the several issues made by the pleadings, returned verdicts for the plaintiffs-appellees and against the defendants-appellants viz.: for Louis H. Wheeler $4,258.00; Margaret K. Wheeler $2,000.00; Gertrude H. McComb $10,000.00; Beatrice McComb, as Administratrix, $4,000.00. Final judgments were entered on each of the verdicts. Motions for a new trial were presented by counsel for the defendants-appellants, and, after argument by counsel and upon due consideration by the trial Court, were denied. Defendants-appellants appealed.
Plaintiffs-appellees presented or tried their case in the Court below on the theory that the proximate cause of their several personal injuries and property losses was the combined negligence of the defendants-appellants at the time of the collision at Sterling's Corner and as a result thereof the plaintiffs-appellees, under our adjudications, had a cause of action against one or both of the wrongdoers. The following cases are cited to sustain the contention: Hernandez v. Pensacola Coach Corp., 141 Fla. 441, 193 So. 555; Seaboard Air Line Ry. Co. v. Watson, 94 Fla. 571, 113 So. 716; Starling v. City of Gainesville, 90 Fla. 613, 106 So. 425, and similar cases.
Counsel for defendants-appellants, at the close of plaintiffs' case, moved the Court for a directed verdict for the defendants and in their motion for a new trial it was again contended that the evidence adduced by the plaintiffs was legally insufficient to establish negligence or to support the verdicts and judgments entered in the lower court. Apparently it was assumed by all the parties during the progress of the trial that the automobile in which the plaintiffs were riding when injured was lawfully parked near the intersection when struck by the trucks of the defendants.
Photographs are in the record showing the road intersection where the collision occurred. Also several photographs or pictures taken of one of the plaintiffs-appellees Chrysler automobile shortly after the collision. These photographs likewise show the light and heavy trucks as they came to rest after the impact with one of the plaintiff's Chrysler. The heavy truck loaded with two yards of mixed concrete ran into the front of the Chrysler, while the lighter truck struck the rear of the parked automobile. The plaintiff's car was demolished by the impact of the two trucks and it sold for about $500.00 when its first cost was something under $3,000.00. Several physicians testified as to the injuries sustained by the parties as a result of the impact.
Three of the parties riding in the Chrysler at the time of the collision testified in the court below. These witnesses saw the large truck approaching in a southerly direction on the Indian Rock Road. It was not only a large truck but was being driven at a fast rate of speed. It was later learned that it was heavily loaded with two squares of concrete. The large truck failed to reduce its speed at the road intersection. The driver of the large truck estimated its speed at the time of approaching the intersection at about 25 miles per hour. Other witnesses called to the stand placed the speed at more than 25 miles per hour. The momentum of the large truck carried the smaller truck with which it collided at the road intersection against the automobile in which the plaintiffs were sitting several feet off the Indian Rock Road. The driver of the truck, as shown by the testimony, was familiar with the road intersection and it was his lawful duty to have reduced the speed of the truck at the intersection for the safety of others, although the signal about the intersection was not functioning. The jury could conclude from the evidence adduced that the large truck at the time of approaching the road intersection was being driven at an excessive rate of speed. See DeSalvo v. Curry, 160 Fla. 7, 33 So.2d 215. Sufficient evidence was before the jury for it to conclude that the driver of the small truck at the time of making the U turn at the road intersection could have seen or observed the approaching concrete truck had he only exercised due care for others at the time and place. See Section 317.22, F.S.A. This assignment is without merit.
Counsel for General Ready-Mixed Concrete, Inc., one of the defendants-appellants, in writing, as required by law, requested the trial court to instruct the jury in its behalf. These requested instructions are identified in the record as 1 to 13, inclusive. The requested instructions of Madson are from 1 to 9, inclusive. On many occasions we have held that requested instructions usually are considered in light of all instructions as given by the trial court and if those instructions contained in the general charges are sufficient on the point or points in controversy, then this Court will not interfere. Register v. State, Fla., 44 So.2d 73.
The requested instructions of counsel, in a broad sense, go the question of the reciprocal legal rights of the appellants at the Sterling's Corner road intersection when the two trucks collided and skidded into and struck the Chrysler automobile owned by one of the plaintiffs. The pleadings in the record reflect cross-complaints and counterclaims filed in the cause by the appellants. The outcome or conclusions reached on the issues made by these pleadings of the appellants in the lower court are not clear from the record. As the writer studies the record, no assignments or cross-assignments of error involving these issues are presented here in the briefs of counsel or in oral arguments. We therefore decline or refuse to adjudicate these several contentions until properly presented.
It is next contended that the instructions as given by the trial court, for various reasons, are erroneous. It must be kept clearly in mind that on this appeal we are reviewing only the verdicts and judgments entered below. For instructions as given by the trial court see Tr. 414 to 428. It is our conclusion that the instructions as given by the trial court are sustained by our adjudications. We fail to find error in the record.
Affirmed.
SEBRING, C.J., and THOMAS and HOBSON, JJ., concur.