ANDREW LEARNER, A MINOR, BY HIS FATHER AND NEXT FRIEND, HOWARD LEARNER, AND HOWARD LEARNER, INDIVIDUALLY, APPELLANTS,
v.
ALONZO COTHRON, APPELLEE

Fla. 3d DCA | 1962-06-26
No. 61-591
Before PEARSON, TILLMAN, C. J., and I-IORTON and HENDRY, JJ.
142 So. 2d 757 Florida District Court of Appeal, Third District (1962) Positive Treatment
Cited by 5 cases

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Synopsis

Appellants challenged a trial court's grant of a new trial in a personal injury case involving a seven-year-old child injured by a dynamite cap explosion. The court affirmed the trial judge's discretionary decision to grant a new trial on grounds that the jury verdict was contrary to the manifest weight of the evidence and appeared to result from sympathy rather than proper legal consideration.


Holding

The appellate court affirmed the trial judge's grant of a new trial, finding no clear abuse of discretion. When a trial judge concludes a verdict is against the manifest weight of evidence or the jury has been influenced by considerations outside the record, the judge has a duty to grant a new trial, and such discretionary rulings should not be disturbed absent a clear showing of abuse.


Key Quotes

“When the judge, who must be presumed to have drawn on his talents, his knowledge and his experience to keep the search for the truth in a proper channel, concludes that the verdict is against the manifest weight of the evidence, it is his duty to grant a new trial”

Establishes the trial judge's duty and the presumption that judges act properly when granting new trials based on manifest weight of evidence

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Facts & Procedural History

The minor plaintiff, age seven, was injured when a dynamite cap exploded in his hand, causing loss of the end of his fourth finger. The cap had been f…

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Opinion of the Court
HENDRY, Judge.

*758HENDRY, Judge.

This is an appeal from an order of the circuit court of Monroe County, Florida, granting a new trial on the grounds that the jury verdict “was contrary to the manifest weight of the evidence * * * and that the verdict was so contrary to the evidence as to indicate improper decision on the part of the Jury in that it acted through sympathy * *

The action was to recover damages for injuries sustained by the appellant, a seven-year-old minor, when injured by the explosion of a dynamite cap. The cap exploded in the minor’s hand causing, inter alia, the loss of the end of the fourth finger on his right hand.

The record reveals that the appellant-minor’s eleven-year-old brother, Dennis, had been visiting a friend, Glen, at a weekend house owned by Glen’s family; that the defendant owned a rock pit and sand pile on premises located across the highway from Glen’s house; that the two boys were playing on the defendant’s property when they observed a shack marked by danger signs which they knew contained dynamite; that nearby they found a locked orange plywood box; that the boys pried the box open and found dynamite caps; that Dennis took a number of the dynamite caps and put them in his dufflebag; that Glen took some caps but returned them because he was afraid he would get in trouble; that when Dennis returned home from his visit, he had the caps with him; that after hiding them for awhile, Dennis asked his brother, the minor-plaintiff, to bring the caps to their room; that the dynamite caps were brought to the boys’ room, and that the explosion occurred when the appellant-minor touched an electric battery to the dynamite cap.

After trial was had, at which time only the plaintiffs presented any witnesses, the jury returned verdicts of $8,000 for the minor child and $553 (the amount of the medical bills) for the boy’s father. Subsequently, the defendant moved for a directed verdict and a new trial. The court then entered the order granting the new trial.

It would be useless in this opinion to discuss this court’s views of the weight and sufficiency of the evidence in view of our limited scope of review. The role of an appellate court, in reviewing an order granting a new trial on grounds such as are involved in the case at bar, has been perspicuously set forth by the Supreme Court in the case of Cloud v. Fallis, Fla. 1959, 110 So.2d 669. The court stated at page 673:

“When the judge, who must be presumed to have drawn on his talents, his knowledge and his experience to keep the search for the truth in a proper channel, concludes that the verdict is against the manifest weight of the evidence, it is his duty to- grant a new trial, and he should always do that if the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record, Martin v. Stone, supra [Fla., 51 So.2d 33], Turner v. Frey, supra [Fla., 81 So.2d 721], Myers v. Atlantic Coast Line Railroad Co., Fla., 86 So.2d 792; Florida Publishing Co. v. Copeland, Fla., 89 So.2d 18.
“Inasmuch as such motions are granted in the exercise of a sound, broad discretion the ruling should not be disturbed in the absence of a clear showing that it has been abused. Dent v. Margaret Ann Super Markets, Fla., 52 So.2d 130; Geffrey v. Langston Const. Co., Fla., 58 So.2d 698; Pyms v. Meranda, supra [Fla., 98 So.2d 341].”

Upon careful review of the record, we find that it has not been shown that the learned trial judge abused his discretion. Accordingly, the order granting the new trial is affirmed.

Affirmed.


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Citator

Cited By

  • Carlisle v. Sims House OF Colonial Furniture, Inc., 152 So. 2d 757 (Fla. 3d DCA 1963)
    …PER CURIAM. Affirmed. See: Cloud v. Fallis, Fla. 1959, 110 So. 2d 669; Learner v. Cothron, Fla.App.1962, 142 So. 2d 757.…
  • Learner v. Cothron, 155 So. 2d 152 (Fla. 1963)
    …Certiorari discharged without opinion. 142 So. 2d 757.…
  • Olsen v. Allied, 163 So. 2d 316 (Fla. 2d DCA 1964)
    …n is apparent from the record then the order of the trial judge may and should be, set aside. Cloud v. Fallis, Fla.1959, 110 So. 2d 669; Bennett et al. v. Jacksonville Expressway Authority, Fla.1961, 131 So. 2d 740; Learner v. Cothron, Fla.App.1962, 142 So. 2d 757; Russo v. Clark, Fla. 1962, 147 So. 2d 1; Ridarsick v. Amirkanian, Fla. App. 1962, 147 So. 2d 580; Wagner v. McCormick, Fla.App.1963, 153 So. 2d 860. This Court has carefully reviewed the record in this cause and finds that it has not been shown th…

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