DEBORAH S. WHITWORTH, APPELLANT,
v.
VICTOR H. CUCHENS, APPELLEE
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Appellant Whitworth challenged the denial of her directed verdict motion in a rear-end collision case where she was struck by Cuchens' vehicle. The court affirmed, holding that conflicting testimony about whether Whitworth's stop was sudden and whether she had stopped lawfully presented factual issues properly resolved by the jury.
The court affirmed the denial of the directed verdict motion and motion for new trial, concluding that conflicting testimony about the manner of appellant's stop presented a factual issue properly submitted to the jury rather than a legal question suitable for directed verdict.
[1] A motion for directed verdict on liability is properly denied when conflicting testimony presents an issue of fact for the jury.
[2] Conflicting testimony regarding the suddenness of a stop and the ability to avoid a collision creates a question of fact for the jury.
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Join FLexlaw to unlock all legal intelligence“We conclude this and other conflicting testimony presented an issue of fact to be determined by the jury, and the court was therefore correct in denying appellant's motion for directed verdict.”
Establishes the standard that conflicting testimony on material facts must go to the jury, precluding directed verdict.
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Join FLexlaw to unlock all legal intelligenceBoth vehicles were traveling in a line of traffic over a bridge. When Whitworth noticed construction work had caused traffic to back up to the top of …
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PER CURIAM.
Appellant appeals the trial judge’s denial of her motion for directed verdict on the issue of liability and the denial of her motion for new trial. We affirm.
Appellant’s vehicle was struck from the rear, by a vehicle driven by appellee. The evidence at trial showed that both vehicles were in a line of traffic travelling over a bridge. As appellant’s vehicle reached the top of the bridge, she noticed that construction work on the other side had cars stopped and backed up to the top of the bridge. When she stopped, her car was struck by appellee’s vehicle. Appellant’s daughter was thrown from the back seat, over the front seat, to the front floor board at or prior to the moment of impact. The evidence indicated that the collision of the two vehicles involved minor force. There were no skid marks reported in the highway patrol accident report. However, appellee testified there were several feet of skid marks left by his stop.
Appellee testified that appellant stopped so suddenly he was unable to avoid the collision. Appellant, of course, denied this. We conclude this and other conflicting testimony presented an issue of fact to be determined by the jury, and the court was therefore correct in denying appellant’s motion for directed verdict. See Chiles v. Beaudoin, 384 So. 2d 175 (Fla. 2d DCA 1980); Lubliner v. Gabrilowitz, 393 So. 2d 46 (Fla. 3d DCA 1981).
In the case of Cowart v. Barnes, 370 So. 2d 103 (Fla. 1st DCA 1979), relied on by appellant, the plaintiff was lawfully stopped at a red light when struck by the defendant. The defendant testified he thought plaintiff was going to run the caution light and he tried to do the same. When plaintiff stopped for the red light, defendant ran into plaintiff’s vehicle. Similarly, in Brethauer v. Brassell, 347 So. 2d 656 (Fla. 4th DCA 1977), three cars were legally stopped at an intersection waiting to turn left. The defendant was travelling in the same direction with one vehicle between his car and the stopped cars. The car in front of him swerved and avoided the stopped vehicles, but the defendant was unable to stop and struck the stopped vehicles.
In the present case there existed a dispute as to whether appellant’s vehicle had stopped in a legal manner on the highway, and that issue was properly presented to the jury.
As to appellant’s argument on denial of her motion for new trial, we find there was competent substantial evidence to support the jury’s verdict..
Accordingly, the judgment is AFFIRMED.
SHAW and WENTWORTH, JJ„ concur. ERVIN, J., dissents with opinion.
ERVIN, Judge,
dissenting.
I dissent because this case is indistinguishable from our decision in Cowart v. Barnes, 370 So. 2d 103 (Fla. 1st DCA 1979). The evidence presented at trial established that appellant’s vehicle had been in its proper place on the highway and that she had been struck from behind by the appel-lee. Such evidence created a rebuttable presumption that the appellee was negligent. Cowart v. Barnes, supra.
This presumption was not rebutted by the appellee, who did not even establish that the appellant’s vehicle had stopped on the highway at the time of the collision. Neither did he establish that appellant stopped her vehicle quickly. Cf. Chiles v. Beaudoin, 384 So. 2d 175 (Fla. 2d DCA 1980). Even if appellee proved at trial that appellant’s vehicle had stopped quickly, such evidence would not have been sufficient to rebut the presumption of negligence. See Cowart v. Barnes, supra; Brethauer v. Brassell, 347 So. 2d 656 (Fla. 4th DCA 1977); Kimenker v. Greater Miami Car Rental, Inc., 115 So. 2d 191 (Fla. 3d DCA 1959).
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Gertrude Tozier v. Jarvis, 469 So. 2d 884 (Fla. 4th DCA 1985)…plaintiffs action of pulling out into lanes of traffic being traveled by a nearby approaching vehicle was the causal factor leading to the accident. Id. at 351. See also Lynch v. Tennyson, 443 So. 2d 1017 (Fla. 5th DCA 1983); Whithworth v. Cuchens, 397 So. 2d 357 (Fla. 1st DCA 1981); Chiles v. Beaudoin, 384 So. 2d 175 (Fla. 2d DCA 1980). The third category in which evidence has been deemed sufficient is when a vehicle has been illegally, and therefore unexpectedly, stopped. In Frazier v. Ross, 225 So. 2d 45…
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Lynch v. Adel D. Tennyson, 443 So. 2d 1017 (Fla. 5th DCA 1983)…t of her and, consequently, came to a sudden and unexpected stop when she ran into its rear, thereby contributing to some degree to the second impact by Lynch’s vehicle. See Bialek v. Lensen, 421 So. 2d 654 (Fla. 1st DCA 1982); Whitworth v. Cuchens, 397 So. 2d 357 (Fla. 1st DCA 1981); Chiles v. Beaudoin, 384 So. 2d 175 (Fla. 2d DCA 1980); Lubliner v. Gabrilowitz, 393 So. 2d 46 (Fla. 3d DCA 1981); Revellino v. Avis Rent-A-Car System, Inc., 229 So. 2d 896 (Fla. 3d DCA 1969); Pagan v. Holman, 195 So. 2d 606 (Fla…
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Carley Sistrunk and Florida M. Sistrunk v. Freeman H. Douglas, 468 So. 2d 1059 (Fla. 1st DCA 1985)…See Brethauer v. Brassell, 347 So. 2d 656 (Fla. 4th DCA 1977). In the instant case the only explanation offered was the suggestion that a distraction and the appellant’s sudden deceleration made the accident “unavoidable.” See Whitworth v. Cuchens, 397 So. 2d 357 (Fla. 1st DCA 1981). Appellee’s explanation is “at best, a mere description of the nature of his distraction. It does not offer any substantial and reasonable explanation for his failure to avoid the collision.” Brethauer, supra, at 657. Although…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brethauer v. Brassell, 347 So. 2d 656 (Fla. 4th DCA 1977)
- Kimenker v. Greater Miami CAR Rental, Inc., 115 So. 2d 191 (Fla. 3d DCA 1959)
- Chiles v. Beaudoin, 384 So. 2d 175 (Fla. 2d DCA 1980)
- Elton Cowart v. Barnes, 370 So. 2d 103 (Fla. 1st DCA 1979)
- Signature Marine Co. v. Elegant Motors, Inc., 393 So. 2d 46 (Fla. 3d DCA 1981)
- Lubliner v. Gabrilowitz, 393 So. 2d 46 (Fla. 3d DCA 1981)