SEABOARD COAST LINE RAILROAD COMPANY, APPELLANT,
v.
LOUISE HENDRICKSON, APPELLEE
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Seaboard Coast Line Railroad appeals a wrongful death judgment of $137,200 arising from a car-train collision, arguing the jury instruction on comparative negligence was erroneous. Although the trial court properly charged the jury on comparative negligence at both parties' request, and the railroad failed to preserve error by objection, the appellate court reverses and remands for a new trial based on three recent Florida Supreme Court decisions requiring new trials in railroad accident cases where the comparative negligence statute was later declared unconstitutional.
The court reverses and remands for a new trial, holding that under three recent Florida Supreme Court decisions, a new trial must be granted in railroad accident cases where the jury was charged on the comparative negligence statute and rendered a verdict against the railroad, regardless of whether the constitutional issue was raised for the first time on appeal or whether the defendant railroad itself requested the instruction.
“in cases involving railroad accidents where the jury, after being charged on the comparative negligence statute, brings in a verdict against the railroad, a new trial must be had if the appeal from the case was pending when the Supreme Court declared the comparative negligence statute unconstitutional, regardless of the facts that the constitutional issue was raised for the first time on appeal and that the appellant railroad requested the faulty instruction.”
Establishes the holding from the three Supreme Court cases (Rouse, Braz, Williams) that compel reversal and remand in this case
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Join FLexlaw to unlock all legal intelligenceLouise Hendrickson brought a wrongful death action under Florida law against Seaboard Coast Line Railroad to recover damages for her husband's death i…
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This is the second appearance of this case before this court. In Atlantic Coast Line Railroad Co. v. Hendrickson, 190 So.2d 178, we affirmed the judgment of the trial court. The Supreme Court granted certiorari, but before a decision was rendered, a motion to dismiss by appellant Seaboard resulted in an order to remand to the trial court for the entry of a proper final judgment. The present appeal is from that rectified final judgment.
The appellee brought this action under the Wrongful Death Act, §§ 768.01 and 768.02, Florida Statutes, F.S.A., to recover damages for the death of her husband as a result of car-train collision at one of appellant’s crossings. At trial Seaboard pleaded the comparative negligence statute, § 768.06, Florida Statutes, F.S.A. Both parties requested and were granted an instruction on comparative negligence. The jury returned a verdict favorable to appel-lee and against Seaboard in the amount of $137,200.
Shortly after Seaboard filed its notice of appeal, the Supreme Court in the case of Georgia Southern and Florida Railway Company v. Seven-Up Bottling Company, Fla.1965, 175 So.2d 39, declared the comparative negligence statute unconstitutional. Seaboard argues now, as it did on its first appearance before us, that it was error to charge the jury on comparative negligence, despite the fact that both parties requested that instruction. When this case was first before us, we took the position that this argument was without merit because of the doctrine of invited error, and because the appellant failed to preserve the error, by objection or otherwise, in the trial court. See 190 So.2d 178, at 182. Since that time, however, the Supreme Court in three decisions, Florida East Coast Railway Company v. Rouse, Fla.1967, 194 So.2d 260; Atlantic Coast Line Railroad Company v. Braz, Fla.1967, 196 So.2d 109; and Seaboard Air Line Railroad Company v. Williams, Fla.1967, 199 So.2d 469, has held that in cases involving railroad accidents where the jury, after being charged on the comparative negligence statute, brings in a verdict against the railroad, a new trial must be had if the appeal from the case was pending when the Supreme Court declared the comparative negligence statute unconstitutional, regardless of the facts that the constitutional issue was raised for the first time on appeal and that the appellant railroad requested the faulty instruction.
Although we feel bound by these three cases to reverse and remand the instant case for a new trial, we do so only for the sake of consistency and uniformity in the administration of justice, and not because we agree with the reasoning in Rouse, Braz and Williams. We feel the Supreme Court in rendering those decisions overlooked the damage that was done thereby to the fundamental doctrine of invited error, and to the axiom requiring an appellant to preserve error in the trial court.
Rule 1.470(b) of the Florida Rules of Civil Procedure, 30 F.S.A. provides in part:
“No party may assign as error the giving of any charge unless he objects thereto at such time or the failure to give any charge unless he requested the same.”
Seaboard not only failed to object to the comparative negligence instruction, but actually requested it to be given. The cases are legion in which our appellate courts have refused to consider a claimed error in an instruction when no objection was made to it at the trial. See, e. g., Williams v. State, 1893, 32 Fla. 251, 13 So. 429; Eicholz v. Frey, Fla.App.1965, 173 So.2d 771; City of Miami Beach v. Belle Isle Apt. Corp., Fla.App.1965, 177 So.2d 884. The law was equally well settled that one could not properly complain on appeal of error for which he was himself re*903sponsible, nor for rulings or instructions that he had requested the trial court to make. Roe v. Henderson, 1939, 139 Fla. 386, 190 So. 618; Escambia County Electric Light & Power Co. v. Sutherland, 1911, 61 Fla. 167, 55 So. 83; North Shore Hospital, Inc. v. Luzi, Fla.App.1967, 194 So.2d 63; Karl v. David Ritter, Sportservice, Inc., Fla.App.1964, 164 So.2d 23.
Having reversed and remanded for a new trial on this point the remaining questions raised are without merit.
HOBSON and MANN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Sonson v. Nelson, 357 So. 2d 747 (Fla. 3d DCA 1978)…er the doctrine of invited error, the defendant may not move for a new trial and then assign as error the court’s order granting a new trial. See Rubin v. Gordon, 165 So. 2d 824 (Fla.3d DCA 1964); and Seaboard Coast Line Railroad Co. v. Hendrickson, 212 So. 2d 901 (Fla.2d DCA 1968). The appeal of the plaintiffs is likewise without merit because the argument that the Lassitter decision allows no punitive damage judgment without at least nominal compensatory damages is supported by the Lassitter decision. In L…
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United Theaters OF Fla., Inc. v. State of Fla. ex rel. Richard E. Gerstein, 259 So. 2d 210 (Fla. 3d DCA 1972)…6 (E.D.Va.1971). We also are of the opinion that the defendant invited this alleged error, by telling the court, “I am not certain the court needs witnesses or wants to hear witnesses.” Seaboard Coast Line Railroad Co. v. Hendrickson, Fla.App.1968, 212 So. 2d 901. Appellant’s argument that an assistant to the state attorney lacked authority to sign the name of the state attorney to the complaint and to litigate this issue was not raised in the trial court and will not be heard on appeal. Silver v. State, Fl…
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Hendrickson v. Seaboard Coast Line R.R. Co., 221 So. 2d 747 (Fla. 1968)…Certiorari denied without opinion. 212 So. 2d 901.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Fla. E. Coast Ry. Co. v. Rouse, 194 So. 2d 260 (Fla. 1966)
- Ga. S. & Fla. Ry. Co. v. Seven-Up Bottling Co. OF Se. Ga., Inc., 175 So. 2d 39 (Fla. 1965)
- The Escambia Cnty. Elec. Light & Power Co. v. Sutherland, 61 Fla. 167 (Fla. 1911)
- Roe v. Henderson, 139 Fla. 386 (Fla. 1939)
- Williams v. State, 32 Fla. 251 (Fla. 1893)
- Frieda Karl and John Karl v. Ritter, 164 So. 2d 23 (Fla. 3d DCA 1964)
- City OF Miami Beach v. Belle Isle Apt. Corp., 177 So. 2d 884 (Fla. 3d DCA 1965)
- N. Shore Hosp., Inc. v. Luzi, 194 So. 2d 63 (Fla. 3d DCA 1967)
- CBS Constr. Co. OF KEY W. v. Towers, 199 So. 2d 469 (Fla. 1967)
- Atl. Coast Line R.R. Co. & Seaboard Air Line R.R. Co. v. Braz, 196 So. 2d 109 (Fla. 1967)