JACKSONVILLE TRACTION CO.
v.
PEARL SEELBACH
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Jacksonville Traction Company appeals a $2,000 judgment for negligence in a street car collision injury case. The Florida Supreme Court affirms, holding that a company cannot escape liability by showing only one of its vehicles was negligent when both caused the injury, and refusing to substitute its damage assessment for those of two juries and the trial judge.
The Court affirms the $2,000 judgment. A defendant responsible for operating multiple vehicles cannot escape liability by proving one was not negligent when both caused the injury. The Court will not substitute its judgment for that of two juries and the trial judge who arrived at the same damage award under essentially identical evidence.
“When a case is affirmed on condition that a remittitur be entered it simply means that the plaintiff may accept that condition or not, as the plaintiff is advised, and if the plaintiff declines to enter a remittitur the case then stands reversed because of excessive verdict and he may go before another jury in another trial, the trial to be de novo from start to finish.”
Establishes the nature and effect of conditional affirmance with remittitur requirement
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Join FLexlaw to unlock all legal intelligencePearl Seelbach was injured in a collision between two street cars belonging to and operated by Jacksonville Traction Company. She alleged both vehicle…
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This is the second appearance of this case in this Court. See 106 Fla. 72, 141 Sou. 892. The case *234was affirmed on its former appearance here upon condition of remittitur.
It is contended that the condition of affirmance was equivalent to a holding by this Court that the plaintiff could not recover more than $500.00. This position is not well taken. When a case is' affirmed on condition that a remittitur be entered it simply means that the plaintiff may accept that condition or not, as the plaintiff is advised, and if the plaintiff declines to enter a remittitur the case then stands reversed because of excessive verdict and he may go before another jury in another trial, the trial to be de novo from start to finish, unless the appellate court by its order limits the future trial to the question of damages.
In this case the plaintiff declined to enter the remittitur. Another trial was' had. There is no material difference in the evidence presented at the later trial and that which was presented at the first trial.
The plaintiff was injured in a collision between two street cars belonging to and operated by the same company. She alleged in her declaration that her injury was caused by the negligent operation of both street cars.
It is' contended that there is a fatal variance between the allegations and'proof because the evidence shows that thé injury was caused by the negligent operation of only one of the street cars. We do not think there is any merit in this contention. The defendant was responsible for the operation of both street cars and it would be a travesty to say that it could avoid its liability by admitting or showing that 'the operation of one street car was negligent and the other was not so.
' We find no reversible! error in the matters of procedure •nor in the action of the court in giving or refusing charges.
The record in the former case before this court showed that a verdict was'■ rendered for $2,000.00 and judgment *235entered thereon. The trial court declined to grant a new trial and did not require a remittitur.
In this case the jury again returned a verdict for $2000.00. The trial court denied a motion for new trial and did not require the entering of a remittitur.
■ We are not inclined to substitute our conclusion as to the extent of damages as against that of two juries and the trial judge when the records show that they have on two ■different trials under practically the same evidence, arrived at the conclusion that the plaintiff is entitled to recover damages in the sum of $2000.00.
The judgment should now be affirmed and it is so ordered.
Affirmed.
Whitfield, P. J., and Brown and Buford, J. J., concur.
Davis, C. J., and Ellis, J., concur in the opinion and judgment.
Terrell, J., dissents.
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Cited By
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Banner Constr. Corp. v. Arnold, 128 So. 2d 893 (Fla. 1st DCA 1961)…red by a different jury upon substantially the same evidence is entitled to greater weight than the first verdict to like effect. American Automobile Insurance Association v. Pearson, 120 Fla. 553, 163 So. 247; Jacksonville Traction Co. v. Seelbach, 117 Fla. 233, 157 So. 509; Southern Express Co. v. Stovall, 75 Fla. 1, 77 So. 618; Jacksonville, T. & K. W. Ry. Co. v. Neff, 36 Fla. 584, 18 So. 765; Pensacola & Georgia Railroad Co. v. Nash, 12 Fla. 497. In Southern Express Co. v. Stovall, supra, the court cite…
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Dura Corp. v. Wallace, 297 So. 2d 619 (Fla. 3d DCA 1974)…ive. We find merit in this position of the plaintiff. A trial judge is not permitted to reduce the verdict of a jury by ordering a remittitur, without permitting the plaintiff to have the option of a new trial. Jacksonville Traction Co. v. Seelbach, 117 Fla. 233, 157 So. 509; Bach v. Miami Transit Company, Fla.App.1961, 129 So. 2d 706; 58 Am.Jur.2d, New Trial, § 224; Anno. 53 A.L.R. 779 ; 95 A.L.R. 1164. Further, it has long been established that a trial judge, upon the entry of an order granting a new tria…
Authorities Cited
- Jacksonville Traction Co. v. Seelbach, 106 Fla. 72 (Fla. 1932)