67 Fla. 40 | Fla. | 1914
In eight counts using varying language the declaration alleges that the city owned, controlled, managed and operated an electric plant located in a certain building in said city; that Gunn was in the employ of the city in said building to work in and about said electrc light plant; that while Gunn was engaged in performing his duties in said electric light plant at night, by reason of the carelessness and negligence of the defendant under stated circumstances in leaving the ends of its wires without insulation, and said wires being charged with electricity, the plaintiff, Gunn, received an electric shock which injured him. The case was tried on issues of not guilty, of contributory negligence and of assumed risk. There was also a special plea averring the machinery was purchased from a reputable manufacturer, and was of the newest and best type of machinery for that purpose; but this special plea was apparently not utilized in the trial, and it may well be eliminated as not essential to a proper determination of the negligence alleged. Upon the conclusion of the plaintiff’s testimony, the court directed a verdict for the defendant, and a writ of error was taken by the plaintiff to the judgment entered on such directed verdict.
The burden of proving the negligence alleged was upon the plaintiff, and the burden of proving the matters set up
It is contended that the plaintiff’s evidence proves contributory negligence, and also proves that the plaintiff assumed the risks that resulted in his injury; and that such proofs are so complete that the trial • court committed no error in directing a verdict for the defendant at the conclusion of the plaintiff’s testimony.
If it be conceded that the plaintiff’s evidence tends to show contributory negligence and assumed risk, it cannot fairly be said on this record that the defendant’s affirmative pleas have been conclusively proven, or that reasonable men may not differ as to the probative force and effect of the evidence adduced.
When it is clear that no error was committed by the trial court in directing a verdict for one of the parties, an appropriate judgment rendered on such directed verdict will not be disturbed. Tedder v. Fraliegh-Lines-Smith Co., 55 Fla. 496, 46 South. Rep. 419; Wade v. Louisville & N. R. Co., 54 Fla. 277, 45 South. Rep. 472; Bass v. Ramos, 58 Fla. 161, 50 South. Rep. 945; Wilson v. Johnson, 51 Fla. 370, 41 South. Rep. 395; Stone v. Citizens’ State Bank, 64 Fla. 456, 59 South. Rep. 945; Mugge v. Jackson, 53 Fla. 323, 43 South. Rep. 91; Investment Co. v. Trueman, 63 Fla. 184, 57 South. Rep. 663; Bell v. Niles, 61 Fla. 114, 55 South. Rep. 392.
The considerations and legal principles that guide the judicial discretion in directing a verdict and in granting a new trial on the evidence are not the same. Florida East Coast Ry. v. Hayes, decided at the last term. In directing a verdict, the court is governed by practically the same'rules that are applicable in demurrers to evi
There was substantial evidence that at least tended to prove the issues in favor of the plaintiff; and it cannot be said on this record that a finding for the plaintiff on the evidence would be unlawful, therefore a directed verdict for the defendant was error.
Assignments of error based on the pleadings do not appear to be material. Pleas should state ultimate facts, not phases of contemplated evidence.
The judgment is reversed.