MARY D. LLOYD, APPELLANT,
v.
JOHN J. MCKENNA, JUAN A. SOLBERG, AND UNIVERSITY CABS, INC., A FLORIDA CORPORATION, APPELLEES
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A passenger in a taxi cab sued both the cab company and another driver following an intersection collision. The jury found the other driver (McKenna) not liable and held only the cab company responsible. The passenger appealed, arguing the trial court erred by failing to direct a verdict finding McKenna liable as a matter of law.
The trial court properly submitted the liability question to the jury rather than directing a verdict against McKenna. A driver who has his vehicle under control, is traveling within the speed limit, has the apparent right of way, and enters an unmarked intersection is not negligent as a matter of law merely because he fails to see a car approaching on the wrong side of the road.
“in determining the propriety of the ruling on the motion for directed verdict, McKenna is entitled to all reasonable inferences from the evidence”
Establishes the standard of review for directed verdict rulings in favor of the defendant.
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Join FLexlaw to unlock all legal intelligenceLloyd was a passenger in a University taxi cab traveling east on N.W. 18th Terrace in Miami. McKenna was traveling north on N.W. 36th Avenue. The vehi…
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The appellant, plaintiff in the trial court, appeals a jury verdict in favor of one defendant.
It appears from the record that the appellant was a passenger in a University taxi cab which was proceeding east on N.W. 18th Terrace, Miami, Florida. The appellee, McKenna, was traveling north on N.W. 36th Avenue. These two streets intersect and a collision occurred, wherein the Mc-Kenna vehicle struck the cab in the right rear. Plaintiff instituted suit against both the cab company and McKenna, and the cause was submitted to the jury with an instruction that it find liability for the plaintiff against both defendants or either of them. The jury returned a verdict exonerating McKenna and holding the cab company liable. The only point preserved for review in this appeal was the failure of the trial court to direct a verdict in favor of the plaintiff against McKenna, holding him liable as a matter of law, his testimony having been that he did not see the cab approaching from the left.
Of course, in determining the propriety of the ruling on the motion for directed verdict, McKenna is entitled to all reasonable inferences from the evidence. See: Massaline v. Rich, Fla.App.1962, 137 So.2d 10; Guhman v. Florida Power & Light Company, Fla.App.1962, 139 So.2d *584749; Alterman Transport Lines, Inc. v. McCahon, Fla.App.1964, 168 So.2d 707. The reasonable inference from the evidence is that the cab was on the wrong side of the street; that it was proceeding twice as fast as McKenna and that the cab driver clearly saw McKenna. The evidence is also susceptible to the view that McKenna was into the intersection first because of the respective speeds and because of certain testimony of the cab driver to the effect that if he had applied his brakes he would have struck McKenna broadside, which infers that rather than applying his brakes he attempted to beat him through the intersection.
We find no error in the trial judge submitting these issues to the jury under the reasonable inferences to be drawn from the evidence. See: Katz v. Bear, Fla.1951, 52 So.2d 903; Budgen v. Brady, Fla.App. 1958, 103 So.2d 672; Housing Authority of Key West v. Joseph G. Moretti, Inc., Fla.App.1960, 119 So.2d 728. To reverse, as urged by the appellant, would require a holding that a driver of a vehicle is negligent as a matter of law when he has his vehicle under control and traveling within the speed limit with the apparent right of way and enters an unmarked intersection because he fails to see a car which is on the wrong side of the road and approaching from the left.
For the reasons stated above, the final judgment under review is hereby affirmed.
Affirmed.
(dissenting).
I respectfully dissent. The driver of the car which collided with the taxicab admitted he did not see the latter vehicle before or when it entered the unmarked intersection. Failure to observe approaching traffic before entering the intersection was negligence. Bellere v. Madsen, Fla.1959, 114 So.2d 619, 621, 80 A.L.R.2d 1; City of Tallahassee v. Ashmore, 158 Fla. 73, 27 So.2d 660, 661; 2 Blashfield, Cyclopedia of Automobile Law and Practice, § 1023, p. 273 (perm. ed). Neither driver entered the intersection sufficiently in advance to preempt the intersection. It appears obvious that the negligence of both drivers combined to proximately cause the accident. See Mele v. Summers, Fla.App.1959, 113 So.2d 254; Kokotoff v. Higman, Fla.App.1958, 101 So.2d 166. The admission of the other driver that he did not see the taxicab approach and enter the intersection, sufficiently certified his negligence and entitled plaintiff to a directed verdict against that party on liability. The fact (as concluded by the investigating officer) that the taxicab may have approached and entered the intersection somewhat to the north or left of the center line of the street on which it was proceeding, did not relieve the other driver of his duty to look out for it and observe it.
CARROLL, Judge
(dissenting).
I respectfully dissent. The driver of the car which collided with the taxicab admitted he did not see the latter vehicle before or when it entered the unmarked intersection. Failure to observe approaching traffic before entering the intersection was negligence. Bellere v. Madsen, Fla.1959, 114 So. 2d 619, 621, 80 A.L.R.2d 1; City of Tallahassee v. Ashmore, 158 Fla. 73, 27 So. 2d 660, 661; 2 Blashfield, Cyclopedia of Automobile Law and Practice, § 1023, p. 273 (perm. ed).
Neither driver entered the intersection sufficiently in advance to preempt the intersection. It appears obvious that the negligence of both drivers combined to proximately cause the accident. See Mele v. Summers, Fla.App.1959, 113 So. 2d 254; Kokotoff v. Higman, Fla.App.1958, 101 So. 2d 166. The admission of the other driver that he did not see the taxicab approach and enter the intersection, sufficiently certified his negligence and entitled plaintiff to a directed verdict against that party on liability. The fact (as concluded by the investigating officer) that the taxicab may have approached and entered the intersection somewhat to the north or left of the center line of the street on which it was proceeding, did not relieve the other driver of his duty to look out for it and observe it.
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Stirling v. Sapp, 229 So. 2d 850 (Fla. 1969)…became aware of the fact that such right-of-way would not be given, and unless he then had a clear opportunity to act in such emergency to avoid the collision after the emergency arose.” Kerr v. Caraway, 78 So. 2d 571 (Fla.1955). Lloyd v. McKenna, 179 So. 2d 583 (Fla. App.3d 1965) involved a collision at an unmarked intersection between a taxicab, in which plaintiff was a passenger, and an automobile driven by defendant McKenna. [*853] Plaintiff joined the taxicab company as a defendant. The jury returned a…
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PIX Shoes OF Miami, Inc. v. Howarth, 201 So. 2d 80 (Fla. 3d DCA 1967)…st contends that the trial judge erred in denying its motion for a directed verdict. Following an examination of the record, we find no merit in this contention. See: Theriault v. Rogers, Fla.App.1964, 166 So. 2d 820; Lloyd v. McKenna, Fla.App.1965, 179 So. 2d 583; Southern Bell Telephone and Telegraph Company v. Linder, Fla.App.1966, 181 So. 2d 697. The second point presents a somewhat more difficult problem. This relates to the denial by the trial judge of the motion for a new trial, one of the grounds of…
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Buck v. Joseph Lopez et ux., 250 So. 2d 6 (Fla. 1971)…Justice (dissenting) : In my opinion the writ of certiorari should be discharged as having been improvidently issued. [*9] The cases relied upon for conflict jurisdiction, Vanzant v. Davies, 215 So. 2d 504 (Fla.App.1st, 1968), and Lloyd v. McKenna, 179 So. 2d 583 (Fla.App.3rd, 1965), are easily distinguished upon the facts from the case sub judice. The opinion of the District Court of Appeal in the case sub judice does no violence to the principle of law that the jury resolves conflicts in the evidence, as…1 / 3
Authorities Cited
- Budgen v. Brady, 103 So. 2d 672 (Fla. 1st DCA 1958)
- Bellere v. Einar Madsen, 114 So. 2d 619 (Fla. 1959)
- Katz v. Bear, 52 So. 2d 903 (Fla. 1951)
- City OF Tallahassee v. Ashmore, 158 Fla. 73 (Fla. 1946)
- Bertie Guhman v. Fla. Power & Light Co., 139 So. 2d 749 (Fla. 3d DCA 1962)
- Kokotoff v. Higman, 101 So. 2d 166 (Fla. 3d DCA 1958)
- Massaline v. Rich, 137 So. 2d 10 (Fla. 1st DCA 1962)
- Alphonse Marcel Mele and Helen Shaffer Mele v. Summers, 113 So. 2d 254 (Fla. 2d DCA 1959)
- Alterman Transp. Lines, Inc. v. McCAHON, 168 So. 2d 707 (Fla. 3d DCA 1964)
- Hous. Auth. OF City OF KEY W. v. Joseph G. Moretti, Inc., 119 So. 2d 728 (Fla. 3d DCA 1960)