Thomas v. Mcdonald

667 So.2d 594 (1995)

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Nature of the Case

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Facts

McCormick was injured when his pick-up truck collided with an International 'gang truck' owned by DAPSCO and operated by D. The DAPSCO truck had stalled on a hill, blocking the eastbound lane. It was about 6:30 p.m. and the operator of the disabled vehicle had provided no warning to the other drivers on the road. The stalled truck had prior problems of stalling the week before. The engine stopped, and the lights went off. The foreman found the truck and jump-started it with booster cables. The truck stalled again. D attempted to 'kick start' the truck, but it had already stopped. It occupied the entire eastbound lane leading into town. Baker, the foreman, testified that he had turned around to warn oncoming cars of the stalled truck. The truck was not equipped with warning devices in the event of vehicle breakdown. State law mandated that trucks not operate between one half-hour after sunset and one half-hour prior to sunrise unless they had reflectors, flares, or warning lights. McCormick filed a negligence action. He died a year later of a heart attack attributed to pre-existing congestive heart failure. McCormick's sister, P, was substituted as party-plaintiff. The trial judge refused to instruct the jury that the failure to place warning signals on the highway was negligence per se pursuant. D got the verdict and P appealed.