E. F. KULCZYNSKI, INDIVIDUALLY, AND D/B/A MAJOR BRANDS, APPELLANT,
v.
WILLIAM HARRINGTON, A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, WILLIAM A. HARRINGTON, WILLIAM A. HARRINGTON, INDIVIDUALLY, AND MERRILL DALE BRYAN, APPELLEES
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A truck owner appeals a judgment for damages arising from a child's injury caused by an improperly secured ladder rack that swung outward from the truck. The court affirmed the judgment, holding that there was sufficient evidence of negligence and that the trial court properly denied the defendant's motion for directed verdict.
The court held that there was sufficient evidence for a jury to find the defendant negligent, as the ladder rack was improperly secured, the truck was in an unsafe condition, the owner knew or should have known of the unsafe condition through reasonable inspection, and the plaintiff's injury was proximately caused by this negligence. The trial court properly denied the motion for directed verdict and properly rejected the consent defense.
“is required to exercise reasonable care to see that the vehicle is in (reasonably safe and proper) condition, and is generally held liable for injuries which are shown to have resulted from the operation of the vehicle which he knew, or in the exercise of reasonable care ought to have known, was in such an unsafe condition as to endanger others.”
Establishes the legal standard for motor vehicle owner liability for negligence in maintaining safe condition
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Join FLexlaw to unlock all legal intelligenceA minor, William Harrington, was struck in the head by a ladder rack protruding from a pick-up truck owned by appellant Kulczynski and driven by his e…
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This is an appeal by the defendant below from an adverse judgment based on a jury verdict in an action for damages for personal injuries.
The appellee William Harrington, a minor, was injured when struck in the head by a ladder rack which protruded outward on the right hand side of a pick-up truck. The truck was owned by the appellant and was being driven by his employee.
On each side of the truck at the rear, there had been attached a metal socket four or five inches in length or depth, designed to hold the ends of a removable pipe which extended upward, above and across the rear of the truck, and which served as a ladder rack or support. On this occasion the rack became dislodged from the socket on the left side, and with the socket on the right side acting as an axis, it swung outward on the right of the truck. It was while the ladder rack was in that position that the minor plaintiff was struck while walking a few feet off the street in the same direction in which the truck was proceeding.
We have considered the several grounds and contentions on which the appellant seeks reversal, and find them to be without merit. The trial court’s dismissal of the appellant-defendant’s motion for directed verdict was not error, as the record was not without evidence upon which the jury could lawfully find the defendant guilty of negligence. See § 54.17, Fla.Stat., F.S.A.; Chambers v. Loftin, Fla.1953, 67 So.2d 220, 221; Cadore v. Karp, Fla.1957, 91 So.2d 806; Paikin v. Beach Cabs, Inc., Fla.App.1966, 180 So.2d 93, 94. There was evidence that a section of pipe approximately 2J4 inches in length had been inserted in the socket on the left side, reducing its depth, and that there were no locks or devices to secure the rack in the sockets.
The appellant-owner testified that he inspected the truck one month prior to the accident and that such inspection failed to disclose the existence of any pipe in the socket. However, it appeared that the defendant owned and operated several trucks similarly equipped, and on cross-examination appellant stated he was not sure that the truck he inspected was the one which was involved in this case. Consequently, the jury was entitled to find that the ladder rack was improperly secured, making the truck in such unsafe condition as to endanger others; that the appellant knew of its condition or by exercise of reasonable care could have and should have known thereof; and that the plaintiff’s injury was proximately caused thereby.
In 8 Am.Jur.2d, Automobiles and Highway Traffic, § 699, it is stated that an owner or operator “is required to exercise reasonable care to see that the vehicle is in (reasonably safe and proper) condition, and is generally held liable for injuries which are shown to have resulted from the operation of the vehicle which he knew, or in the exercise of reasonable care ought to have known, was in such an unsafe condition as to endanger others. The owner or operator of a motor vehicle must exercise reasonable care in the inspection of the vehicle to discover any defects that may prevent its proper operation, and is charge*507able with knowledge of any defects which such inspection would disclose.”
The doctrine of res ipsa loquitur was applicable on the facts presented (Yarbrough v. Ball U-Drive System, Inc., Fla.1950, 48 So.2d 82), and the presentation by plaintiff of specific evidence of negligence did not preclude its use. McKinney Supply Company v. Orovitz, Fla.1957, 96 So.2d 209, 211; South Florida Hospital Corporation v. McCrea, Fla.App.1959, 112 So.2d 393. The rejection by the trial judge of the issue of consent, and his refusal to charge thereon were proper where it was shown the driver had been given custody of the truck and was authorized by the defendant to use it, although the defendant contended that his use of it at the time of the accident was not authorized. See Jacksonville Paper Co. v. Carlile, 153 Fla. 661, 15 So.2d 443; Case & Company v. Benefield, Fla.1953, 64 So.2d 922.
Having determined that no reversible error has been demonstrated, we hereby affirm the judgment.
Affirmed.
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Goodyear Tire & Rubber Co. & Travelers Ins. Co. v. Hughes Supply, Inc., 358 So. 2d 1339 (Fla. 1978)…n by the district court. . Among these are Auto Specialties Mfg. Co. v. Boutwell, 335 So. 2d 291 (Fla. 1st DCA), cert. dismissed, 341 So. 2d 1080 (Fla.1976); Cortez Roofing Inc. v. Barolo, 323 So. 2d 45 (Fla. 2d DCA 1975); Kulczynski v. Harrington, 207 So. 2d 505 (Fla. 3d DCA 1968); National Airlines, Inc. v. Fleming, 141 So. 2d 343 (Fla. 1st DCA 1962).…
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Dayton Tire & Rubber Co. v. Davis, 348 So. 2d 575 (Fla. 1st DCA 1977)…d 393 (Fla.3d DCA 1959), cert. dism., 118 So. 2d 25 (Fla.1960). Reliance on both res ipsa and specific proof of negligence has since become commonplace. National Airlines, Inc. v. Fleming, 141 So. 2d 343 (Fla.lst DCA 1962); Kulczynski v. Harrington, 207 So. 2d 505 (Fla.3d DCA 1968); Cortez Roofing Co., Inc. v. Barolo, 323 So. 2d 45 (Fla.2d DCA 1975). In any putative res ipsa case, it is necessary for the court to consider “the circumstances” in determining whether the jury could find the accident “speaks for…
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Burgin v. Shelton Merritt, III, 311 So. 2d 688 (Fla. 3d DCA 1975)…d 82. Appellee Merritt points out that the instant case involves defective equipment on a vehicle. In Yarbrough, the forward end of a drive shaft became displaced. This court followed the Yarbrough rational in Kulczynski v. Harrington, Fla.App.1968, 207 So. 2d 505, where it was stated that the jury was entitled to find from the facts presented that a ladder rack on top of a truck was improperly secured and appellant knew of the condition or by the exercise of reasonable care could have and should have known o…
Authorities Cited
- Yarbrough v. Ball U-Drive Sys., 48 So. 2d 82 (Fla. 1950)
- Chambers v. Loftin, 67 So. 2d 220 (Fla. 1953)
- McCRORY v. Kelly, 91 So. 2d 806 (Fla. 1956)
- Cadore v. Karp, 91 So. 2d 806 (Fla. 1957)
- McKINNEY Supply Co. v. Orovitz, 96 So. 2d 209 (Fla. 1957)
- Lester v. State, 153 Fla. 661 (Fla. 1943)
- MacNEILL v. Marks et ux., 64 So. 2d 922 (Fla. 1953)
- Chase & Co. v. Benefield, 64 So. 2d 922 (Fla. 1953)
- Ulrich v. State, 112 So. 2d 393 (Fla. 1st DCA 1959)
- S. Fla. Hosp. Corp. v. McCREA, 112 So. 2d 393 (Fla. 3d DCA 1959)