WILFORD LEE KING, APPELLANT,
v.
JACKSONVILLE COACH COMPANY, A CORPORATION, APPELLEE
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In this automobile-bus collision case, a jury returned a verdict for plaintiff King, but the trial court granted the defendant's motion for judgment notwithstanding the verdict, finding error in the jury charge on last clear chance doctrine. The appellate court reversed, holding the evidence was sufficient for the jury to apply the last clear chance doctrine and returned a verdict for plaintiff, but upheld the alternative conditional motion for a new trial.
The evidence was sufficient for the jury to properly apply the doctrine of last clear chance and return a verdict for plaintiff; therefore, it was error to enter judgment for the defendant. The judgment on the directed verdict was reversed. The conditional alternative motion for a new trial was upheld as within the trial court's discretion, with no clear showing of abuse.
“the evidence adduced at the trial was sufficient for the jury to have properly applied the doctrine of last clear chance and to have returned a verdict for the plaintiff”
Establishes that the evidence supported the jury verdict and the trial court erred in setting it aside.
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Join FLexlaw to unlock all legal intelligenceKing was involved in an automobile-bus collision with Jacksonville Coach Company. At trial, a jury returned a verdict in favor of plaintiff King. The …
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In this automobile-bus collision case, after the jury brought in a verdict for the plaintiff, the defendant filed a motion for a judgment in accordance with its prior motion for directed verdict or, in the alternative, a motion for a new trial. The trial court entered an order, which is appealed here, granting the motion for judgment for the defendant and provided that, in the event that the judgment is reversed on appeal, the alternative motion for a new trial to be granted. Final judgment for the defendant was entered on this order and this appeal ensued.
The trial court indicated in this order that the basis of its ruling was its belief that it had committed error in charging *481the jury on the doctrine of last clear chance and that the .verdict was against the manifest weight of the evidence. Without a lengthy elaboration of these facts, suffice it to say that we have carefully examined the record here and are of the opinion that the evidence adduced at the trial was sufficient for the jury to have properly applied the doctrine of last clear chance and to have returned a verdict for the plaintiff. Under these circumstances, it was error to enter judgment for the defendant and that judgment is hereby reversed.
The ruling of the trial court granting the alternative motion for new trial contingent upon this court’s reversal of its final judgment presents a separate and somewhat more unique question from those discussed in the preceding paragraphs of this opinion. Although the language of Rule 2.7, Florida Rules of Civil Procedure, 31 F.S.A., indicates that the trial court may set aside a jury verdict by either granting the renewed motion for a directed verdict or granting the motion for new trial, but not both, an examination of Official Form Six which was promulgated by the Florida Supreme Court for use by the Bar in conjunction with Rule 2.7, and the decisions of the Federal Courts under Rule SO, Federal Rules of Civil Procedure, 28 U.S.C.A., which is similar to our Rule 2.7, leads us to the conclusion that the trial court was correct in ruling upon both motions in the alternative manner described above. See: Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; 31 F.S.A., Florida Rules of Civil Procedure, Rule 2.7, Form 6.
Having reversed the judgment based upon the renewed motion for directed verdict, we are now confronted with the order granting the new trial. It is well established that a motion for new trial is directed in the sound exercise of the trial court’s broad judicial discretion and that the trial court’s ruling should not be disturbed by an appellate court in the absence of a clear showing that it has abused that discretion. Cloud v. Fallis, Fla.1959, 110 So.2d 669. Our examination of the record in this case does not reveal a clear showing of such abuse.
The judgment is reversed and the cause is remanded for a new trial in accordance with the trial court’s order granting the same.
WIGGINTON, C. J., and STURGIS, J., concur.
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Smith v. Peninsular Ins. Co., 181 So. 2d 212 (Fla. 1st DCA 1965)…, of the Florida Rules of Civil Procedure, in conjunction with the form of order approved by the Supreme Court of Florida as appropriate under Rule 2.7 (Form 6 in 31 F.S.A., pages 67 and 68). Also see our decisions in King v. Jacksonville Coach Co., 122 So. 2d 480 (1960) and McCloskey v. Louisville & Nashville Railroad Co., 122 So. 2d 481 (1960). One of the grounds set forth by the trial court in the said order conditionally granting a new trial, and what we conceive to be that court’s principal ground, is t…1 / 2
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McGLOSKEY v. Louisville & Nashville R.R. Co., 122 So. 2d 481 (Fla. 1st DCA 1960)…d fully with reason and justice. A comprehensive discussion of the reasons supporting the Montgomery Ward case is found in Marsh v. Illinois Central R. Co., 5 Cir., 175 F. 2d 498. See, also, our opinion in the case of King v. Jacksonville Coach Co., 122 So. 2d 480, filed July 19, 1960 (since this case became final prior to publication, this is no longer necessary). By order of January 21, 1950, the Supreme Court of Florida approved and adopted forms of summons at law and in chancery. The same order by refere…
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Irma Kaufman and her husband Harry Kaufman v. Sweet, 144 So. 2d 515 (Fla. 3d DCA 1962)…nted. This rule has been established in Montgomery Ward & Co. v. Duncan, (1940) 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147 and has since been generally followed by the lower federal courts and the courts of Florida. King v. Jacksonville Coach Company, 122 So. 2d 480. However, the rule that the trial court, in addition to granting judgment notwithstanding the verdict, should also rule upon the alternative motion for a new trial does not contemplate the entry of inconsistent orders. If the trial court grants the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959)
- Montgomery Ward & Co. v. Duncan, 311 U.S. 243 (U.S. 1940)