ELIZABETH WALKER AND RUSSELL WALKER, HER HUSBAND, APPELLANTS,
v.
EVERAL ELIZABETH STAYLER MOSER, APPELLEE

Fla. 4th DCA | 1967-07-28
No. 737
CROSS, J., and LOPEZ, AQUILINO, Jr., Associate Judge, concur.
201 So. 2d 609 Florida District Court of Appeal, Fourth District (1967) Positive Treatment
Cited by 4 cases

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Synopsis

In this automobile guest statute case, the Florida District Court of Appeal reversed a directed verdict for the defendant driver, holding that the evidence of gross negligence (including driving after drinking alcohol, driving at excessive speed with a fogged windshield without glasses, and colliding at full speed with a stopped vehicle despite warnings) should have been submitted to the jury rather than decided by the trial court.


Holding

The court reversed, holding that when evidence is viewed in the light most favorable to the appellant, there was sufficient evidence from which a jury could have found gross negligence. The question of whether the defendant's negligence was ordinary or gross should have been submitted to the jury under the standard established in Carraway v. Revell.


Key Quotes

“The same rule applies to appeals from directed verdicts as applies to appeals from summary judgments or decrees. The evidence must be viewed in the light most favorable to the appellant. All reasonable inferences are resolved in favor of the party against whom a verdict has been directed. The test is whether there was any evidence upon which a jury could have found a verdict for the appellant.”

Establishes the standard of review applicable to directed verdicts on appeal

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Facts & Procedural History

Elizabeth Walker and her husband Russell were riding as guest passengers in a car driven by defendant Everal Elizabeth Stayler Moser. During the eveni…

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Opinion of the Court
WALDEN, Chief Judge.

WALDEN, Chief Judge.

This is a suit for damages arising out of an automobile collision. Plaintiffs were riding as guest passengers in the automobile driven by the defendant. After introduction of all the evidence defendant moved for a directed verdict on the ground that there was no showing of gross negligence as required by the automobile guest statute. The motion was granted and judgment was entered for defendant. Plaintiffs appeal. We reverse.

As stated in Maloy, Fla. Appellate Prac. & Proc., § 10.16:

“The same rule applies to appeals from directed verdicts as applies to appeals from summary judgments or decrees. The evidence must be viewed in the light most favorable to the appellant. All reasonable inferences are resolved in favor of the party against whom a verdict has been directed. The test is whether there was any evidence upon which a jury could have found a verdict for the appellant.”

The evidence in the case at bar indicates that defendant, during the course of the evening in which the accident occurred, had “several” beers at at least one tavern and *610a “couple” of beers at two other places. The car into which she collided had been stopped in the left traffic lane for from thirty seconds to one minute, had its tail lights and left directional working, and was plainly visible for at least one and one-half blocks. Additionally, there was testimony from which a jury could have concluded that appellant never did apply her brakes, but collided at full speed into the stopped car.

Both of the plaintiffs testified that they warned defendant of the car in front of them, Mr. Walker while one and one-half blocks away, and Mrs. Walker from one-half block away.

Testimony was also introduced to show that her driving speed was excessive under the traffic conditions, her windshield fogged, and that she was not wearing her glasses at the time of the collision.

The Supreme Court of Florida, in Carraway v. Revell, Fla.1959, 116 So.2d 16, at page 22, defined that degree of negligence which a guest passenger must prove in order to recover under Florida’s guest statute:

“We hold that a guest under the statute .* * * may recover for gross negligence which is that kind or degree of negligence which lies in the area between ordinary negligence and wilful and wanton misconduct * * *.
“In doubtful cases, the question of whether such negligence is ordinary or gross is, as we have heretofore held, one which under appropriate instructions should be submitted to the jury.”

Viewed in the light most favorable to appellant, the evidence in the instant case could support a finding of that degree of negligence sufficient to give rise to liability under the automobile guest statute. Therefore, under authority of Carraway, supra, the question of whether such negligence was ordinary or gross should have been submitted to the jury. See also, Richardson v. Sams, Fla.App.1964, 166 So.2d 468; Foy v. Fleming, Fla.App.1964, 168 So.2d 177; and Bobstein v. Splinter, Fla.App.1964, 168 So.2d 560.

Reversed.

CROSS, J., and LOPEZ, AQUILINO, Jr., Associate Judge, concur.


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Cited By

  • Meehan v. Seaboard AIR Line R.R. Co. & James B. Hensley, 210 So. 2d 476 (Fla. 3d DCA 1968)
    …evidence. In many instances the consumption of alcoholic beverages by a driver is admissible into evidence as relevant to one or more issues developed during the trial. See Gates v. McKay, Fla.App.1966, 181 So. 2d 740. Walker v. Moser, Fla.App.1967, 201 So. 2d 609. See also cases collected in the annotation at 26 A.L.R.2d 359. [*478] Appellant has not specifically assigned as error rulings at trial on the admissibility of evidence concerning the consumption of alcoholic beverages. Nevertheless, we have examin…
  • Kermit S. Black, Jr. v. Anne Zaretsky, 209 So. 2d 467 (Fla. 3d DCA 1968)
    …PER CURIAM. Affirmed. See Carraway v. Revell, Fla. 1959, 116 So. 2d 16; Farrey v. Bettendorf, Fla.1957, 96 So. 2d 889 and Fla.App.1960, 123 So. 2d 558; Hellweg v. Holmquist, Fla. App.1967, 203 So. 2d 209; Walker v. Moser, Fla.App.1967, 201 So. 2d 609; Peterson v. Wheelus, Fla.App.1967, 194 So. 2d 627; Foy v. Fleming, Fla.App.1964, 168 So. 2d 177 and Richardson v. Sams, Fla.App. 1964, 166 So. 2d 468.…

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