SAMUEL LONNIE NELSON, PLAINTIFF-APPELLEE,
v.
FORD MOTOR COMPANY, ETC., DEFENDANT-APPELLANT
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The court held that the trial court did not err in refusing to instruct the jury on contributory negligence and in instructing the jury on res ipsa loquitur.
Plaintiff sustained personal injuries in a single-vehicle accident allegedly caused by a failed axle bearing. The defendant appealed the judgment agai…
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PER CURIAM:
Ford Motor Company appeals from a judgment against it for personal injuries sustained by Samuel Lonnie Nelson in a single vehicle accident which allegedly resulted from the failure of a bearing on the left rear axle. Two issues are raised: (1) the District Court’s refusal to give a requested instruction on contributory negligence, and (2) whether the District Court fell into error by instructing the jury on the doctrine of res ipsa loquitur. We affirm.
When reasonable men can differ as to whether facts infer negligence on the part of the plaintiff the question of contributory negligence is normally one for the jury, Lynn v. Pulford, 200 So. 2d 201, 202 (Fla.App., 1967). However, as in this ease, where there is not some proof to support a charge of contributory negligence, the District Court’s refusal to give such a charge is not error, Seaboard Coast Line Railroad Company v. McDaniel, 254 So. 2d 15, 16 (Fla.App., 1971).
Ford maintains that for res ipsa loquitur to apply it must be shown that the defendant was in control of the instrumentality at the time of the accident. The true rule, however, is that the critical point of time is the time of the probable negligence — not the time of the injury, Holman v. Ford Motor Company, 239 So. 2d 40, 44 (Fla.App., 1970); Dement v. Olin-Mathieson Chemical Corporation, 5 Cir., 1960, 282 F. 2d 76, 81. Ford also asserts that res ipsa loquitur does not apply because the plaintiff’s truck at one time or another might have been driven by the plaintiff’s wife or son. Again, the proper rule is that the application of the doctrine of res ipsa loquitur does not require the injured person to obviate each and every remote possibility of injury. Groves v. Florida Coca-Cola Bottling Company, 40 So. 2d 128, 130 (Fla.1949); 58 Am.Jur.2d, Negligence § 501.
Consequently, the judgment must be
Affirmed.
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Cited By
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Firestone Rubber Co. v. Parrish, 303 So. 2d 380 (Fla. 3d DCA 1974)
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Riley v. The Goodyear Tire & Rubber Co. (M.D. Fla. 2019)…947) and Yarbrough v. Ball U-Drive Sys., Inc., 48 So. 2d 82 (Fla. 1950)). In such cases, the “critical point of time” in assessing exclusive control is “the time of the probable negligence—not the time of the injury.” See Nelson v. Ford Motor Co., 469 F. 2d 261, 262 (5th Cir. 1972) (citing Holman v. Ford Motor Co., 239 So. 2d 40, 44 (Fla. 1st Dist. Ct. App. 1970) and Dement v. Olin-Mathieson Chem. Corp., 282 F. 2d 76, 81 (5th Cir. 1960))5; see also Tamiami Trail Tours, Inc. v. Locke, 75 So. 2d 586, 588 (F…
Authorities Cited
- Isbell Enters., Inc. v. Citizens Cas. Co. OF NEW York, 431 F.2d 409 (5th Cir. 1970)
- Holman v. Ford Motor Co., 239 So. 2d 40 (Fla. 1st DCA 1970)
- Jergens v. Gallop, 40 So.2d 128 (Fla. 1949)
- Dement v. Olin-Mathieson Chem. Corp., 282 F.2d 76 (5th Cir. 1960)
- Lynn v. Pulford, 200 So. 2d 201 (Fla. 4th DCA 1967)
- Seaboard Coast Line R.R. Co. v. McDANIEL, 254 So. 2d 15 (Fla. 1st DCA 1971)