SUSIE BELLE MCALLISTER, APPELLANT,
v.
ROBERT LINWOOD TUCKER AND SEABOARD AIR LINE RAILROAD COMPANY, A CORPORATION, APPELLEES
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In this negligence case arising from a fatal accident, the Florida Supreme Court initially affirmed the trial court's judgment setting aside a jury verdict for plaintiff, but upon rehearing reversed course and reinstated the jury verdict, holding that the negligence issue was properly a matter for jury determination rather than judgment as a matter of law.
The negligence issue was properly a matter for jury determination, and the trial court erred in setting aside the verdict. The judgment is reversed and the jury verdict is reinstated.
“We are convinced that the verdict was contrary to the manifest weight of the evidence. When the trial court so finds, it is his duty to grant a new trial.”
The court's initial reasoning for affirming the trial court's setting aside of the verdict, stating the standard for trial court judgment notwithstanding verdict.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiff's deceased husband was involved in an accident with defendant Robert Linwood Tucker and the Seaboard Air Line Railroad Company. A jury retur…
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TERRELL, Chief Justice.
In our opinion filed March 16, 1956 (first consideration), we reviewed the final judgment of the trial court in which he set aside the verdict of the jury and entered judgment for defendants on the ground that the evidence shows “the sole proximate cause of the accident which gave rise to this action was the negligence of the plaintiff’s deceased husband.” After thorough review of the evidence we entered the following order:
“We are convinced that the verdict was contrary to the manifest weight of the evidence. When the trial court so finds, it is his duty to grant a new trial.
“The judgment appealed from is accordingly affirmed in so far as it sets aside the verdict but with directions to grant a new trial.”
Petition for rehearing on the part of appellees filed March 29, 1956, contends that our judgment should have been one of direct affirmance rather than one of affirmance in so far as it sets aside the verdict but with directions to grant a new trial. We thought the point was well taken and on June 20, 1956, amended the judgment of March 16 to read: “The judgment appealed from is accordingly affirmed.”
We are now confronted with a second petition for rehearing in which, among other things, it is contended that our judgment of March 16, 1956, as modified by our judgment of June 20, 1956, is inconsistent and at variance and that a judgment should now be entered in conformance with the verdict of the jury.
We have reviewed the record in the light of the latter petition for rehearing and Mr. Justice HOBSON, Mr. Justice ROBERTS, Mr. Justice DREW and Mr. Justice THORNAL are of the view that the issue was one for a jury and being so the judgment of the trial court should be reversed with directions to approve the verdict and finding of the jury. Mr. Chief Justice TERRELL and Mr. Justice O’CONNELL are of the view that the judgment of the trial court was correct and should be affirmed. It results that the judgment appealed from is reversed on rehearing with instructions to reinstate and affirm the verdict of the jury.
It is so ordered.
HOBSON, ROBERTS, DREW, THOR-NAL and O’CONNELL, JJ„ concur. THOMAS, J., not participating.
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Tyus v. Apalachicola N. R.R. Co., 130 So. 2d 580 (Fla. 1961)…t court in and for Liberty County. . Fla.1956, 88 So. 2d 519. . See also Baggett v. Davis, 1936, 124 Fla. 701, 169 So. 372, 379. . Examine Seaboard Air Line Railroad Co. v. Braddock, Fla.1957, 96 So. 2d 127. . See McAllister v. Tucker, Fla.1957, 93 So. 2d 83, 84. This was our final opinion and decision on rehearing. It was not mentioned in the District Court’s opinion herein, although our original opinion in the McAllister case (88 So. 2d 526), from which we receded, was cited. See also McAllister Hotel…
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Myers v. Atl. Coast Line R.R. Co., 112 So. 2d 263 (Fla. 1959)…etition for rehearing, reversed with instructions to reinstate and affirm the jury verdict. In so reversing it was the majority’s view that the issue of negligence should have been decided by the jury. The modified opinion will be found at Fla.1957, 93 So. 2d 83. . The dictum of the reviewing court is not ■within the rule of the law of the case and is, therefore, not conclusive on a subsequent appeal. State v. Florida State Improvement Commission, Fla.1952, 60 So. 2d 747. See also 2 Fla.Words and Phrases,…
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Fla. E. Coast Ry. Co. v. Soper, 146 So. 2d 605 (Fla. 3d DCA 1962)…under the circumstances of a particular case, be considered along with other factors in determining whether reasonable care and caution have been exercised. See McAllister v. Tucker, Fla.1956, 88 So. 2d 526, 528, reversed on petition for rehearing, 93 So. 2d 83. Counsel for the appellees argued to the jury that this accident would not have occurred if the appellant had equipped this crossing with flashing lights, bells and gates. This argument, the appellant contends, was highly prejudicial and resulted i…