RICHARD LEE MENARD AND JOHN W. MENARD, APPELLANTS,
v.
JOHN PHILLIP O'MALLEY, ETC., ET AL., APPELLEES
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A pedestrian struck by a truck while crossing a highway appealed a jury verdict in favor of the defendant-truck driver. The appellate court reversed and remanded because the trial court erred in refusing to instruct the jury on Florida's statute limiting vehicle width, which evidence suggested was violated.
The trial court committed reversible error by refusing to instruct the jury on the vehicle width statute. A party is entitled to jury instructions on his theory of the case when evidence substantially supports the theory, even if contradicted by opposing evidence. Here, the evidence clearly raised the issue of excessive truck width in violation of the statute.
[1] A party is entitled to have the jury instructed upon their theory of the case when the evidence, viewed favorably to that theory, substantially supports it.
[2] The violation of a statute can constitute evidence of negligence.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a party is entitled to have the jury instructed upon his theory of the case when the evidence viewed in a light favorable thereto substantially supports the theory, even though it may be subsequently controverted by evidence of the opposing party”
Establishes the standard for when jury instructions on a party's theory must be given, even if opposed by other evidence.
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Join FLexlaw to unlock all legal intelligencePlaintiff, a pedestrian standing near the center line of U.S. 1 in Monroe County, was struck by the side-view mirror of defendant's truck and thrown i…
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PEARSON, Judge.
The plaintiff, who is the appellant here, was struck by defendant’s truck when, as a pedestrian, he attempted to cross U.S. 1 in Monroe County. The cause was tried before a jury and the defendant received a verdict and judgment. The single question presented on appeal is whether the court erred in refusing to give one or more of defendant’s requested instructions.
We hold that reversible error has been demonstrated because of the court’s refusal to instruct on a statute limiting the width of automobiles operated on the highways. This is so because the violation of the statute is evidence of negligence and the issue of the excessive width of defendant’s truck was presented by the evidence. It is true that an appellate court will not set aside a verdict, where it is conformable to the law and the facts, merely because the trial court refused to give instructions that might properly be given. Maistrosky v. Harvey, Fla.App.1961, 133 So. 2d 103. See also Crosby v. Stubblebine, Fla.App.1962, 142 So. 2d 358, and Gavin v. Headley, Fla.App.1973, 272 So. 2d 843.
Nevertheless, it must be recognized that a party is entitled to have the jury instructed upon his theory of the case when the evidence viewed in a light favorable thereto substantially supports the theory, even though it may be subsequently controverted by evidence of the opposing party. See Williams v. Sauls, 1942, 151 Fla. 270, 9 So. 2d 369; Luster v. Moore, Fla.1955, 78 So. 2d 87; Hattaway v. Florida Power & Light Company, Fla.App.1961, 133 So. 2d 101, and Sea Ledge Properties, Inc. v. Dodge, Fla.App. 1973, 283 So. 2d 55.
We have reviewed all the evidence and while space and time do not permit what might be a useful discussion of the evidence, we find that the following facts appear: (1) Plaintiff was standing near the center line of the highway1; (2) he was struck by the side-view mirror of defendant’s truck and was thrown into the extending bed of the truck; (3) Fla. Stat. § 316.196 provides, “Maximum width, height, length2 (1) The total outside width of any vehicle or the load thereon shall not exceed ninety-six inches . . .;” (4) the cab of the truck was 7 feet wide and the mirror on the truck extended out about 20 to 25 inches from the cab; and (5) plaintiff requested, in writing, an instruction on the statute. An instruction that violation of a statute is evidence of negligence was requested and denied. Under these circumstances revealed by the record, the refusal of plaintiff’s requested instructions is reversible error. See de Jesus v. Seaboard Coast Line Railroad Company, Fla. 1973, 281 So. 2d 198, and Florida East Coast Railway Company v. Pollack, Fla.App.1963, 154 So. 2d 346.
Having determined that reversible error appears, it is not necessary to discuss plaintiff’s remaining points on appeal ; but, because the case must be tried again, we have examined plaintiff’s requested instructions, the denial of which were assigned as error. We agree that the denial of the instruction based on Fla. Stat. § 316.030, “Careless driving,” was not error. In a like manner, we agree with the court’s denial of an instruction on Fla. Stat. § 316.183, “Unlawful speed” was not error. We think that the denial of the instruction on Fla.Stat. § 316.185, “Special hazards,” was error under the circumstances presented by the evidence.
Reversed and remanded.
. There is testimony from one witness that plaintiff stepped backwards just before he was hit, but this is clearly a matter in defense of defendant’s claimed negligence and cannot affect the necessity for an instruction upon the claimed negligence.
. At oral argument, it was suggested that the statute to which plaintiff made reference did not exist under that number at the time of the accident. Reference to the statute shows that the prior number of the section was § 317.761. This fact does not affect the validity of the request for instruction unless it can be shown that the trial judge was misled by plaintiff’s request.
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Seaboard Coastline R.R. Co. v. Addison, 502 So. 2d 1241 (Fla. 1987)…EHRLICH, Justice. We have for our review Seaboard Coastline Railroad Company v. Addison 481 So. 2d 3 (Fla. 1st DCA 1985), which conflicts with City of Tamarac v. Garchar, 398 So. 2d 889 (Fla. 4th DCA 1981), and Menard v. O’Malley, 327 So. 2d 905 (Fla. 3d DCA 1976). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.1 The respondent, Addison, received permanent injuries in 1983 when petitioner Seaboard’s train struck the pickup truck operated by Addison. The evidence at trial showed that t…
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Ridley v. Safety Kleen Corp., 693 So. 2d 934 (Fla. 1996)…oastline R.R. v. Addison, 502 So. 2d 1241 (Fla.1987); Robinson v. Gerard, 611 So. 2d 605 (Fla. 1st DCA 1993); Sotuyo v. Williams, 587 So. 2d 612 (Fla. 1st DCA 1991); City of Tamarac v. Garchar, 398 So. 2d 889 (Fla. 4th DCA 1981); Menard v. O’Malley, 327 So. 2d 905 (Fla. 3d DCA 1976). In Addison, this Court explained: At issue here is respondent’s alleged violation of a statute, section 316.1575(l)(c), part of the Florida Uniform Traffic Control Law. Standard Instruction 4.11 was the instruction that should h…
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Ryder Truck Rental, Inc. v. Johnson, 466 So. 2d 1240 (Fla. 1st DCA 1985)…. A party is entitled to have the jury instructed on his theory of the case when the evidence, viewed in a light favorable thereto, substantially supports the theory, even though that theory is controverted by the opposing party. Menard v. O’Malley, 327 So. 2d 905 (Fla. 3d DCA 1976). The trial court must have found the statutes relevant because it allowed the appellants’ attorney to read the statutes to the jury. However, the court, in reading Standard Jury Instruction 4.11 to the jury, did not “read or parap…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Transition Rule 15, 281 So. 2d 198 (Fla. 1973)
- Williams v. Sauls, 151 Fla. 270 (Fla. 1942)
- Luster v. Moore, 78 So. 2d 87 (Fla. 1955)
- Crosby v. Stubblebine, 142 So. 2d 358 (Fla. 2d DCA 1962)
- Fairbanks v. Robertson, 151 Fla. 224 (Fla. 1942)
- Hattaway v. Fla. Power & Light Co., 133 So. 2d 101 (Fla. 2d DCA 1961)
- Maistrosky v. Harvey, 133 So. 2d 103 (Fla. 2d DCA 1961)
- SEA Ledge Props., Inc. v. Dodge, 283 So. 2d 55 (Fla. 4th DCA 1973)
- Fla. E. Coast Ry. Co. v. Pollack, 154 So. 2d 346 (Fla. 3d DCA 1963)
- Gavin v. Duval A. Headley and Charles Edward Tudor, 272 So. 2d 843 (Fla. 3d DCA 1973)