HOLLAND PAVING CO., INC., A FLORIDA CORPORATION, APPELLANT,
v.
JAMES A. DANN, INDIVIDUALLY, AND JAMES A. DANN, AS THE ADMINISTRATOR OF THE ESTATE OF JAMES ARTHUR DANN, JR., DECEASED, ET AL., APPELLEES; JAMES A. DANN, INDIVIDUALLY, AND JAMES A. DANN, AS THE ADMINISTRATOR OF THE ESTATE OF JAMES ARTHUR DANN, JR., DECEASED, APPELLANT, V. HOLLAND PAVING CO., INC., A FLORIDA CORPORATION, HILL'S VAN SERVICE, INC., A FLORIDA CORPORATION, AND FOGARTY BROS. TRANSFER, INC., A FLORIDA CORPORATION, APPELLEES

Fla. 3d DCA | 1964-11-24
Nos. 64-192, 64-215
Before BARKDULL, C. J., and CARROLL and TILLMAN PEARSON, JJ.
169 So. 2d 849 Florida District Court of Appeal, Third District (1964) Positive Treatment
Cited by 25 cases

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Holding

The appellate court reversed the order granting a new trial, finding the trial judge's conclusion that the verdict was excessive was clearly erroneous. It affirmed the judgments for the plaintiff and against the paving company.


Facts & Procedural History

A child died in a rear-end collision involving a tractor-trailer. The plaintiff sued the paving company for failing to warn of highway lane reduction …

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Opinion of the Court
PER CURIAM.

*850PER CURIAM.

These appeals grow out of the same trial. The plaintiff was James A. Dann, individually, and as administrator of the estate of his infant son, James Arthur Dann, Jr., deceased. The child was killed as a result of a rear-end collision between an automobile and a tractor-trailer truck on a heavily traveled highway. The defendants were as follows: (1) Holland Paving Co., Inc., who was working upon a part of the highway and charged with negligence for failure to provide adequate warning to oncoming motorist of the reduction of the northbound side of the highway from two to one lane; (2) Hill’s Van Service, Inc., the owner of the truck, and (3) Fogarty Bros. Transfer, Inc., the lessee of the truck, which struck the car in which plaintiff’s deceased child was a passenger.

The jury trial resulted in a verdict for the plaintiff father, individually, in the amount of $50,000 against Holland Paving Co., Inc. and a verdict of $10,000 for the plaintiff, as administrator of the estate of his deceased child against the same defendant. The jury returned not guilty verdicts as to Hill’s Van Service, Inc. and Fogarty Bros. Transfer, Inc. Subsequent to the recording of the verdicts, the trial judge entered an order granting a new trial to the defendant, Holland Paving Co., Inc., as to the verdict in favor of the plaintiff, as administrator of the estate of his deceased child. This order set out the following grounds for the granting of the new trial:

“(a) The amount of the verdict is excessive; (b) The amount of the verdict is such as to shock the conscience of the Court; and, (c) The amount of the verdict is not supported by the weight of the evidence.”

Upon the entry of the judgments indicated, an appeal was taken by the defendant, Holland Paving Co., Inc., from the $50,000 judgment; a cross-appeal was taken by the plaintiff, as administrator, which was directed to the order granting a new trial, and an appeal was taken by the plaintiff from the judgments in favor of the defendants, Hill’s Van Service, Inc. and Fogarty Bros. Transfer, Inc.

Upon the appeal of Holland Paving Company, Inc., it is urged that the trial court erred in failing to direct a verdict for the paving company because the evidence before the jury entirely failed to establish that its negligence was the proximate cause of the collision. We find upon a review of the record that this contention cannot be sustained by reason of the rule stated in Wynne v. Adside, Fla.App. 1964, 163 So.2d 760.

The cross-appeal of the plaintiff, as administrator of the estate of his deceased child, urges that the order granting a new trial is error because the conclusion of the trial judge that the evidence before the jury did not support the amount of the verdict was clearly erroneous and an abuse of discretion.

We hold that the order granting a new trial must be reversed. Awarding a new trial in this instance would merely allow another jury to pass upon the question of the amount of damages. No further evidence can be adduced by the plaintiff, nor does the record support the ground that the amount awarded was so excessive as to shock the conscience of the court. Rosenfelder v. Huttoe, Fla.1953, 66 So.2d 226.

The appeal of the plaintiff urges that the trial court erred in denying plaintiff’s motion for a directed verdict as to the owner and lessee of the truck since these defendants failed to rebut the presumption of negligence arising by reason of the rear-end collision. See: Greyhound Corp. v. Ford, Fla.App.1963, 157 So.2d 427. In order to sustain appellants’ position on this appeal, it would be necessary for us to hold that a jury of reasonable men had to find upon this record that a negligent *851action of the driver of the truck did contribute directly to the injury. This we decline to do since it is not the function of this Court to substitute its judgment or interpretation of the facts for that of the jury. Food Fair Stores of Fla., Inc. v. Vallarelli, Fla.App.1958, 101 So.2d 161. We find that there is evidence in the record which would support a finding that if the driver of the truck was negligent, such negligence did not constitute a concurring cause of the accident but that the accident was proximately caused by the sudden slowing of the lead automobile caused by the negligence of the defendant paving company in failing to provide adequate warning of an obstruction to the highway.

The judgments appealed are affirmed and the order granting new trial is reversed.


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Citator

Cited By (12 total)

  • …death action for the death of an eleven month old only child of parents unable to have other children. The damages there were primarily for the past and future mental pain and suffering of both parents. Cf. Holland Paving Co. v. Dann, Fla.App.1964, 169 So. 2d 849 and Coast Cities Coaches, Inc. v. Donat, Fla.App.1958, 106 So. 2d 593. In their brief opposing the motion for a new trial appellees cited numerous million dollar jury verdicts and several more recent cases were noted in their brief on appeal. Many…
  • Gresham v. Courson, 177 So. 2d 33 (Fla. 1st DCA 1965)
    …It is significant that the plaintiff father in Donat presented substantial evidence to the effect that his mental condition was altered and impaired as a result of the untimely and tragic loss of his 6-year-old child. In Holland Paving Co. v. Dann, 169 So. 2d 849, decided November 24, 1964, our Third District Court of Appeal reversed an order granting a new trial in the father’s suit as administrator of the estate of his deceased child in which the verdict of $10,000.00 was held by the trial court to be exce…
  • Hershey v. The Keyes Co., 209 So. 2d 240 (Fla. 3d DCA 1968)
    …the seller could be obtained. I think that the decision of the majority is contra to the holdings that appellate courts will not retry cases. Miami Shores Village v. Lingler, Fla.App.1963, 157 So. 2d 716; Holland Paving Co. v. Dann, Fla.App. 1964, 169 So. 2d 849. I would therefore affirm the judgment. . The jury was also instructed immediately after the instruction above quoted, as follows: “If you find from the evidence in this case that the defendants, Mac D. Moore and The Keyes Company, were retained…

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