#### Lois R. SMITH, as Administratrix of the Estate of Michelle Renee Smith, Deceased, a minor, Appellant, v. Henry A. LASKEY and Carlie E. Laskey, trading and d/b/a Laskey Sales Company, and Robert Alvin Miller, Appellees. Lois R. SMITH, Appellant, v. SCHLITZ BREWING COMPANY, a corporation, Henry A. Laskey and Carlie E. Laskey, trading and d/b/a Laskey Sales Company, and Robert Alvin Miller, Appellees.

Nos. 1652, 1653.

District Court of Appeal of Florida. Fourth District.

April 30, 1969.

Rehearing Denied June 12, 1969.

Joseph D. Farish, Jr., and Eugene E. Shuey, of Farish & Farish, West Palm Beach, for appellant.

John R. Beranek, of Jones, Adams, Paine & Foster, West Palm Beach, for appellees Laskey and Miller.

McCAIN, Judge.

Michelle Renee Smith, the two-year-old daughter of the plaintiff Lois Smith, was struck by a truck driven by the defendant, Robert Alvin Miller. Miller was acting within the scope of his employment for the defendants, Henry and Carlie Laskey, d/b/a Laskey Sales Company. As a result of the injuries she sustained, Michelle died.

Plaintiff filed an action as administra-trix of her deceased child’s estate, in which she claimed damages for pain and suffering endured by the infant, and for the loss of prospective estate. At various points in the *774record this suit was referred to as a survival action, under Section 45.11, F.S.1965 (now Section 46.021, F.S.1967, F.S.A.). It is clear from the damages claimed, however, that this suit actually was a joinder of a survival action (under the above provision) and a wrongful death action maintained by the administratrix. Sections 768.-01 and 768.02, F.S.1967, F.S.A. The manner in which these actions were combined is not put in issue by defendants on appeal and we therefore do not treat that question.

The jury returned a verdict of $31,200.-00 and the trial court ordered a remittitur of $21,200.00, which plaintiff refused to accept. Plaintiff brought appeal No. 1652 from the order granting defendants a new trial.

Plaintiff, as the widowed mother, also brought an action under the Wrongful Death of Minors Act, Section 768.03, F.S. 1967, F.S.A. The jury returned a verdict of $28,800.00 for plaintiff and the trial court entered a judgment n. o. v. for defendants, finding plaintiff to be contribu-torily negligent as a matter of law. Plaintiff brings appeal No. 1653 from the entry of this judgment n. o. v.

The appeals were consolidated for our consideration. In both instances we reverse.

In number 1652, the combined survival and wrongful death action, both pain and suffering and loss of estate were properly elements of damage. The former under the survival statute and the latter under the wrongful death act. See Ake v. Birnbaum, 1945, 156 Fla. 735, 25 So.2d 213; Guarniere v. Henderson, Fla.App.1965, 171 So.2d 617. We have carefully reviewed the record and are of the opinion that there was ample evidence to support the jury’s findings. See Holland Paving Co. v. Dann, Fla.App.1964, 169 So.2d 849 (cert. dismissed Fla., 173 So.2d 145); Seaboard Air Line Railroad Co. v. Gay, Fla.App.1967, 201 So.2d 238.

We consider the trial court to have abused its discretion in granting a new trial and therefore reverse in number 1652 with directions to reinstate the verdict for plaintiff in the amount of $31,200.00.

With regard to the Wrongful Death of Minor’s action, the trial court directed a verdict on the basis that the evidence conclusively established that the plaintiff-mother was contributorily negligent in not maintaining close enough supervision over her child. Again we have reviewed the evidence and find that there was conflicting testimony sufficient to permit a jury determination of the question. We feel the established rule was clearly summarized by our sister court in Rofer v. Jensen, Fla.App.1962, 141 So.2d 791, 793, when it stated:

> “The general rule, of course, is that issues of negligence or contributory negligence are to be determined by the jury and ordinarily should not be disposed of by the Court in a peremptory manner. Where the facts are such that reasonable persons may fairly arrive at different conclusions, the question of negligence or contributory negligence should be submitted to a jury.” (Citations omitted.)

We therefore reverse with directions to reinstate the verdict of $28,800.00 for plaintiff in number 1653.

Reversed and remanded.

CROSS, J., concurs.

REED, J., concurs, in part, and dissents, in part, with opinion.

REED, Judge

(concurring, in part, and dissenting, in part).

I respectfully dissent from the decision and opinion of the majority in Case No. 1652, but concur in Case No. 1653.

Case No. 1652 was an action brought by the mother as administratrix of the deceased child’s estate. Following the entry of a jury verdict in the amount of $31,-200.00 the defendants filed a motion for a *775new trial. On the basis of this motion, the trial court entered an order which read in part as follows:

> “In this case the decedent was a child two years old; said child survived the accident some twelve days and never regained consciousness to any appreciable extent. The child never talked, and the only evidence of pain was an occasional moan and a possible muscle reflex. The evidence is wholly lacking as to any basis for the value of the child’s estate, other than the fact that the deceased was a girl two years of age in normal health. The verdict in this case of $31,200.00 is not supported by the evidence and is most excessive. It is thereupon

> “ORDERED that the defendants’ motion for new trial will be granted, unless the plaintiff does within ten days of this order enter a remittitur in the sum of $21,200.00, leaving a verdict of $10,000.00 for the plaintiff.”

It is from this order that the appeal was taken in Case No. 1652.

In my opinion, our duty is to test this order against the well established principles relating to appellate review of a trial court’s order which grants a motion for new trial. Trial judges, because of their unique relationship to the trial, have a broad discretion when acting upon a motion for new trial. The trial judge’s ruling should not be disturbed on appeal in the absence of a clear showing of an abuse of this discretion. Cloud v. Fallis, Fla.1959, 110 So.2d 669; Hendricks v. Dailey, Fla.1968, 208 So.2d 101.

The trial judge has the power to grant a new trial when the-verdict is so excessive as to shock the judicial conscience or when the verdict is the result of passion, prejudice or any other improper motive. Bartholf v. Baker, Fla.1954, 71 So.2d 480. My review of the record, and particularly the testimony referred to in the plaintiff’s brief, leads me to conclude that the above quote from the trial judge’s order granting the new trial accurately summarized the evidence relating to the two elements of damages recoverable by the plaintiff in her capacity as administratrix. This evidence is so lacking in probative value that it cannot support the jury verdict of $31,200.00 for those elements of damage and reasonably suggests that the verdict was motivated by understandable sympathy for the deceased child and her surviving widowed mother. Accordingly, it is my conclusion .that the trial judge acted properly with respect to the motion for a new trial and that his actions should be affirmed under the principles of Cloud v. Fallis, supra.

The appellant contends that it was error for the trial judge to have entered the remittitur because there was no basis in the record to determine how excessive the verdict was. In my opinion this is not a basis for an appellate reversal of the trial judge’s order for the simple reason that the order can and should be sustained as an order granting a motion for new trial, without reference to the remittitur.

I would affirm the order appealed from in Case No. 1652. Otherwise, I agree with the opinion and decision of the majority.