Opinion
March 25, 1952. Rehearing Denied April 22, 1952.
Appeal from the Circuit Court, Dade County, Vincent C. Giblin, J.
Dixon, DeJarnette Bradford and James A. Dixon, all of Miami, for appellant.
Morehead, Forrest, Brown Gotthardt, Miami, for appellee.
Affirmed.
SEBRING, C.J., CHAPMAN and THOMAS, JJ., and MURPHREE, Associate Justice, concur.
TERRELL and MATHEWS, JJ., dissent.
ROBERTS, J., not participating.
Appellee, a 79 year old lady, secured a judgment against appellant for personal injuries alleged to have been suffered while riding as a passenger on one of its buses. It appears from the evidence that appellee drove her car to a repair shop somewhere in the City of Miami to have the wheels aligned. She then got on the bus and went to down town Miami where she did some errands. Having finished her errands she got on the first bus that came along and traveled to N.W. 2nd Avenue, thence for a distance on said Avenue when the bus turned on another street. When the locus became unfamiliar to her she asked the driver if he was still on N.W. 2nd Avenue and was told that he was not. She at once proceeded to the driver to secure a transfer. As she was returning to her seat the driver suddenly applied the brakes to avoid hitting a pedestrian, when she was thrown to the floor and was injured. She testified that the bus was moving 40 miles per hour or more.
She alighted from the bus as soon as it stopped and caught another bus in the opposite direction. She could give no account of where the stop was made or where the accident took place. She eventually got back to her car and drove it home but could not tell where or how she got there. She went to bed and said she heard her nephew phone the bus company late in the afternoon about the accident but the nephew was not produced to testify at the trial. Appellant says that it heard nothing about the accident till suit was brought.
The only witness for appellant was its safety director who was present at the trial and heard appellee's testimony. He was asked if appellant had any bus route at the time of the accident which corresponded to that described by the plaintiff. Objection to the question on the ground of irrelevancy was sustained. Appellant contends that if the safety director had been permitted to answer the question it would have shown that it did not at the time and had never operated a bus line within 15 blocks of where the accident is alleged to have taken place, nor was there any bus route in that neighborhood. The purpose of the rejected question was to show why the bus company had been unable to produce the bus driver as a witness at the trial.
Counsel for the plaintiff premised his argument to the jury on the failure of the defendant to produce the bus driver as a witness and suggested that such failure would justify them in believing that his account of the accident would corroborate that of the plaintiff. The court overruled an objection to this argument, the ruling having been made in the presence of the jury and was one of the grounds of a motion for a new trial.
The plaintiff was injured early in December 1948 but she could not tell what bus route she took going from or returning to down town Miami, she could not tell where the accident took place, her description of the course she took and where the accident took place did not square with any bus route of defendant. The declaration alleged that it took place on the "streets and roadways of the City of Miami". Her evidence was vague and indefinite as to other aspects of the transaction. In a city the size of Miami, with the large number of bus drivers required on the part of appellant for day and night service, it would have been difficult if not impossible in view of the meager information from the evidence and the declaration to locate the driver of the bus at the time and place the accident took place. One seeking to recover damages for personal injuries must allege every material aspect of the case with sufficient clarity to put the defendant on notice that at some time, place, and under circumstances specifically described, its negligence was responsible for the accident. Even in a personal injury action a plaintiff is not permitted to hem a defendant in the corner, tie his hands behind him and rifle his pockets without giving him a fair chance to shoot.
It is therefore my view that both rulings complained of were prejudicial to the defendant for which the judgment should be reversed and a new trial awarded.
MATHEWS, J., concurs.