SOUTH FLORIDA BEVERAGE CORPORATION D/B/A PEPSI COLA BOTTLERS OF MIAMI, INC., A FLORIDA CORPORATION AND ANTONIO FERNANDEZ, APPELLANTS,
v.
MARIO SAN PEDRO, APPELLEE
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South Florida Beverage Corporation appealed a judgment notwithstanding the jury verdict in favor of plaintiff San Pedro for injuries sustained when an employee negligently pushed a pallet into his foot. The court reversed, holding that conflicting evidence on comparative negligence is a jury question and the trial court erred in setting aside the jury's verdict.
The trial court erred in entering judgment notwithstanding the jury verdict because there was conflicting evidence on the issue of comparative negligence, and the jury's determination that San Pedro was 52% at fault is supported by evidence and is within the jury's province to decide.
[1] A trial court should not enter a judgment notwithstanding the jury verdict when there is conflicting evidence on the issue of a plaintiff's comparative negligence.
[2] The apportionment of negligence between a plaintiff and a defendant is a question peculiarly within the province of the jury.
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Join FLexlaw to unlock all legal intelligence“where evidence is in conflict and verdict thereon is not manifestly against weight of evidence, court should not interfere and set aside jury verdict”
Establishes the standard that trial courts may not set aside jury verdicts when conflicting evidence supports the verdict
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Join FLexlaw to unlock all legal intelligenceSan Pedro, while making a meat delivery at a supermarket receiving area, was injured when Fernandez, an employee of South Florida Beverage Corporation…
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PER CURIAM.
Because there was conflicting evidence on the issue of the plaintiffs comparative negligence, the trial court should not have entered a judgment for the plaintiff notwithstanding the jury verdict. Nunberg v. Brodsky, 224 So. 2d 727 (Fla. 3d DCA 1969) (where evidence is in conflict and verdict thereon is not manifestly against weight of evidence, court should not interfere and set aside jury verdict). The question of apportioning negligence between the plaintiff and defendant is peculiarly within the province of the jury. Tyus v. Apalachicola Northern Railroad, 130 So. 2d 580 (Fla.1961) (conflicting testimony on question of defendant’s' negligence, particularly where comparative negligence rule applies, is absolutely within province of jury); St. Pierre v. Public Gas Co., 423 So. 2d 949 (Fla. 3d DCA 1982) (question of apportioning negligence between plaintiff and defendant is one that is particularly within province of jury).
Plaintiff San Pedro brought this action against South Florida Beverage Corporation and its employee, Fernandez, alleging that Fernandez, while acting within the scope of his employment with South Florida Beverage, negligently pushed a pallet full of Pepsi-Cola bottles into his left foot, causing injuries. The defendants denied the allegations of negligence and raised the affirmative defenses of comparative negligence and assumption of risk. A jury returned a verdict of $12,500 and found plaintiff fifty-two per cent at fault.
San Pedro thereafter filed a renewed motion for a directed verdict on the issue of liability and a motion for judgment in accordance with motion for directed verdict, contending that there was no negligence on his part and that he should have a judgment entered in his favor for the full amount of the damages. This appeal is from a final judgment entered for San Pedro on his motion for judgment in accordance with the motion for a directed verdict.
The facts show that San Pedro, in the course of his employment, was in the receiving area of a supermarket in Hialeah to make a delivery of meat and that Fernandez was there at the same time to stock the supermarket’s shelves with Pepsi-Cola bottled drinks. Two employees of the supermarket were assisting San Pedro in unloading his truck.
In transferring the bottles of soft drinks from the truck to the store, Fernandez used a mobile platform called a “bird cage.” When fully loaded with wooden crates the platform weighs about 800 pounds, stands taller than the user, is propelled by pushing, and offers the user little frontal visibility. Before the accident occurred Fernandez had passed San Pedro in the receiving area, with the noisy platform, without incident.
Fernandez testified that after stocking some of the merchandise he came out of the store and gave a warning to the others to “watch out, I’m coming through with the bird cage” and that San Pedro acknowledged the warning by looking at Fernandez. An employee of the store who was assisting San Pedro recalled Fernandez giving three warnings, two before he began to move the platform and another after the platform was in motion. There was also evidence that San Pedro had been to this particular supermarket many times before, at the same time as Fernandez, and that he was familiar with the unloading area and the delivery procedures at the receiving dock.
On this record it cannot be said as a matter of law that the jury’s finding of comparative negligence is supported by “no evidence whatever.” See Wheaton v. Bok-nert Roofing & Supply Co., 369 So. 2d 1016, 1018 (Fla. 3d DCA 1979) (quoting Mullís v. City of Miami, 60 So. 2d 174, 176 (Fla.1952)).
Reversed and remanded with instructions to enter a judgment in accordance with the jury verdict.
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Ebony Hall v. Hosain Daee, M.D., 570 So. 2d 296 (Fla. 3d DCA 1990)…PER CURIAM. Affirmed. Woods v. State, 490 So. 2d 24 (Fla.), cert denied, 479 U.S. 954, 107 S.Ct. 446, 93 L.Ed.2d 394 (1986); Moore v. Morris, 475 So. 2d 666 (Fla.1985); South Florida Beverage Corporation v. San Pedro, 499 So. 2d 915 (Fla. 3d DCA 1986); Meli v. Dade County School Board, 490 So. 2d 120 (Fla. 3d DCA), review denied, 500 So. 2d 543 (Fla.1986); Del Monte Banana Company v. Chacon, 466 So. 2d 1167 (Fla. 3d DCA 1985); Tilley v. Broward Hospital District, 458 So. 2d 817…
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Bonica v. Dade Cnty. Sch. Bd., 549 So. 2d 220 (Fla. 3d DCA 1989)…lt in the instant case, and that he had the necessary maturity to appreciate the nature and consequences of his acts. Turner v. Seegar, 10 So. 2d 320 (1942); Dupuis v. Heider, 113 Fla. 679, 152 So. 659 (1934); South Fla. Beverage Corp. v. San Pedro, 499 So. 2d 915 (Fla. 3d DCA 1986). The final judgment under review is reversed, and the cause is remanded to the trial court with directions to enter judgment for the plaintiff in accord with the jury’s verdict. Reversed and remanded.…
Authorities Cited
- Tyus v. Apalachicola N. R.R. Co., 130 So. 2d 580 (Fla. 1961)
- Mullis v. City of Miami, 60 So.2d 174 (Fla. 1952)
- Drowne v. Fla. Indus. Comm'n & DCS/Comptroller, 224 So. 2d 727 (Fla. 1st DCA 1969)
- Acceus ST. Pierre v. Pub. GAS Co., 423 So. 2d 949 (Fla. 3d DCA 1982)
- Wheaton v. Bohnert Roofing & Supply Co., Inc., 369 So. 2d 1016 (Fla. 3d DCA 1979)