VENICE GARDELLA, APPELLANT,
v.
HOWARD STONE, ET AL., APPELLEES
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Trial court erred in directing a verdict for defendant driver where evidence supported jury finding of negligence based on defendant's failure to see and avoid pedestrian.
A directed verdict for the defendant was improper where evidence supported a jury finding that the defendant driver should have seen and avoided the plaintiff pedestrian.
[1] A directed verdict for a defendant in a negligence case is improper where evidence in the record supports a jury finding that the defendant should have seen and avoided t…
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Join FLexlaw to unlock all legal intelligenceA pedestrian was struck and injured by a car driver. The defendant driver claimed she never saw the plaintiff, but the plaintiff had walked into the m…
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DAUKSCH, Judge.
This is an appeal from a judgment based upon a directed verdict in a personal injury case.
As appellant, a pedestrian, was crossing a street, she was struck and injured by appellee, the driver of a car. Because there is some evidence in the record from which a jury could have found negligence on the part of the defendant, the trial judge erred in directing a verdict for her. Although the defendant said she never saw the plaintiff, the jury could have properly found that the defendant should have seen the plaintiff and avoided striking her. The defendant and the plaintiff were both in the roadway a sufficient period of time for each to have seen the other — the plaintiff had walked into the middle of the road and the defendant entered the roadway at least a half-block from the point of impact traveling at a speed of no greater than twenty-five miles per hour. One eyewitness standing fifty to sixty feet from the plaintiff said he could see her and some evidence indicates there was sufficient lighting for plaintiff to have been seen and, thus, avoided. Where a jury could have found some degree of fault and liability against the defendant, the trial court should not have directed a verdict for the defendant.
REVERSED and REMANDED.
COBB, J., and LOCKETT, J.T., Associate Judge, concur.
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Stroud v. Strawn, 675 So. 2d 646 (Fla. 2d DCA 1996)…e appellant’s presence in the roadway for an extended period of time could give rise to a conclusion that both the appellant and the appellee had been in the roadway a sufficient period of time for each to have seen the other. See Gardella v. Stone, 507 So. 2d 1228 (Fla. 5th DCA 1987). We, therefore, conclude that the trial court erred in granting summary final judgment for the appellees, and reverse and remand for further proceedings. FULMER and WHATLEY, JJ., concur.…
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Owens v. Dep't OF Hwy. Safety & Motor Vehicles, 572 So. 2d 953 (Fla. 5th DCA 1990)…is particularly important in Florida, because the doctrine of comparative negligence applies. Reinhart v. Seaboard Coast Line, 422 So. 2d 41, 44 (Fla. 2d DCA 1982), review denied, 431 So. 2d 989 (Fla.1983). As this court stated in Gardella v. Stone, 507 So. 2d 1228 (Fla. 5th DCA 1987), whenever there is some evidence in the record from which a jury could find negligence on the part of a defendant, a directed verdict should not be granted. And too, it is not within the province of the trial court to either weig…
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