AVERY WISDOM, TRADING AND DOING BUSINESS AS WISDOM SOD SERVICE, AND PAUL EDWARD RIGHTNOWAR, APPELLANTS,
v.
ROY E. NICKELS, APPELLEE

Fla. 4th DCA | 1968-07-19
No. 1415
REED, J., and SILVERTOOTH, LYNN N., Associate Judge, concur.
212 So. 2d 652 Florida District Court of Appeal, Fourth District (1968) Positive Treatment
Cited by 7 cases

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Synopsis

In this negligence action arising from a collision between a moving automobile and a parked flatbed truck at an unmarked intersection on unlighted streets, the jury found the defendants liable despite both parties violating traffic statutes. The appellate court affirmed, holding that traffic statute violations are prima facie evidence of negligence but not conclusive, and that the jury properly resolved the issues of negligence and proximate cause.


Holding

The court held that traffic statute violations are prima facie evidence of negligence but are rebuttable and not conclusive; that the jury was the proper arbiter to determine whether the parties' negligent acts were the proximate cause of the collision; and that plaintiff's negligence does not bar recovery unless it has a direct and proximate causal relation to his injury.


Key Quotes

“It is settled law in Florida that the violation of a traffic law is prima facie evidence of negligence. Michalski v. Peaslee, Fla.App.1965, 174 So.2d 427. Of course, this does not mean that such violation is conclusive or that it is not rebuttable, or that it cannot be overcome by proof of other circumstances.”

Establishes the legal standard that traffic violations are evidence but not conclusive proof of negligence

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Facts & Procedural History

Plaintiff Wisdom was driving an automobile and making a left turn at a street intersection on unlighted streets with unmarked lanes in a county subdiv…

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Opinion of the Court
WALDEN, Chief Justice.

WALDEN, Chief Justice.

This is a negligence action wherein the common issues of negligence and contributory negligence were presented and charged to the jury. Their verdict favored plaintiff with damages. Defendants appeal from the resulting final judgment. We affirm.

In seeking a reversal defendants ask us to assess the facts and from them to decide as a matter of law either that defendants were free of actionable negligence or that plaintiff was guilty of contributory negligence. We have reviewed and con-*653elude that the verdict was supported by substantial competent evidence and the jury operated within its proper sphere. This being true, we find no reason in law for this court to resolve the issues differently.

There was a collision between a moving automobile driven by plaintiff and the defendants’ parked flatbed tractor-trailer truck.1 It occurred at night while plaintiff was in the process of making a left turn at a street intersection. Involved were unlighted streets with unmarked lanes within a county subdivision.

State traffic statutes governed the events and it is uncontroverted that both vehicles were in clear violation at the time.

A. Defendants’ truck violated F.S.1967, Section 317.445(1), F.S.A.,2 and F.S.1967, Section 317.581(3), F.S.A.,3 because it was unlighted and improperly parked on the wrong side of the street.
B. Plaintiff violated F.S.1967, Section 317.341(2), F.S.A.,4 in that he “cut the corner” and to some extent was on the wrong side — the left half — of the street as he proceeded into the turn and struck the defendants’ truck.

Defendants argue that plaintiff’s violation of the traffic statute and his failure to see and avoid the defendants’ truck absolutely bars plaintiff from recovery and made it mandatory for the trial court to enter judgment for defendants. While they urge plaintiff’s statutory violation should be contributory negligence as a matter of law, they inconsistently contend that their violation of the statute and conduct was not actionable negligence, also as a matter of law.

Booth v. Mary Carter Paint Company, Fla.App.1966, 182 So.2d 292, states the rule with reference to traffic law violations :

“It is settled law in Florida that the violation of a traffic law is prima facie evidence of negligence. Michalski v. Peaslee, Fla.App.1965, 174 So.2d 427. Of course, this does not mean that such violation is conclusive or that it is not re-buttable, or that it cannot be overcome by proof of other circumstances. * * * ”

Therefore, the jury was free to conclude that either plaintiff or defendants, or both, were guilty of negligence although *654it was not required to do so under the circumstances of this case.

Even had the jury concluded both parties were guilty of negligence, the fundamental or underlying question before us deals with proximate cause. Under the facts and circumstances of this case the jury was the proper arbiter in deciding if the acts highlighted by defendants were or were not proximately and causally related to the collision.

A plaintiff may be guilty of negligence yet not be barred from recovery if such negligence was not the proximate cause of his injury. Bessett v. Hackett, Fla.1953, 66 So.2d 694, set forth the well known limitation that,

“ * * * [I]t is not every act of negligence on the part of a plaintiff that will bar his recovery for injuries resulting from the negligence of another. It is only when negligent acts on the part of the plaintiff have a direct and proximate causal relation, or contribute in some appreciable degree, to the injury that recovery is precluded. * * * ”

This material was quoted in Musachia v. Rosman, Fla.App.1966, 190 So.2d 47. That case held additionally that the issue of proximate cause is peculiarly one for the jury. See also Bohlmann v. Booth, Fla.App.1967, 196 So.2d 507, and Nelson v. Ziegler, Fla.1956, 89 So.2d 780

Defendants have cited Sims v. Apperson Chemicals, Inc., Fla.App.1966, 185 So.2d 179, and Preger v. Gomory, Fla.1951, 55 So.2d 541, for the proposition that their violation of parking ordinances was not, as a matter of law, a proximate cause of plaintiffs injuries. Upon examination we are satisfied that the dissimilar facts with which they dealt disqualify them as precedents in this case.

Inasmuch as the statutes and their legal effect were properly explained to the jury we feel that no error has been demonstrated and that the facts were such as to allow the jury in the performance of its function to resolve the issues in the manner in which it did.5

Affirmed.

REED, J., and SILVERTOOTH, LYNN N., Associate Judge, concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Ellison v. Gurney A. Cribb, Jr., 271 So. 2d 174 (Fla. 1st DCA 1972)
    …. . §§ 317.461 (now 316.217), and 317.872 (now 316.249), F.S. . Parker v. Hofheinz (Fla.App.1966) 181 So. 2d 367; Holland v. Watson (Fla.App.1968) 215 So. 2d 498; Knabb v. Tompkins (Fla.App.1971) 254 So. 2d 858. . Wisdom v. Nickels (Fla.App.1968) 212 So. 2d 652; Booth v. Mary Carter Paint Company (Fla.App.1966) 182 So. 2d 292; Bessett v. Hackett (Fla.1953) 66 So. 2d 694. . Seay v. State, 139 Fla. 433, 190 So. 702. . Drury v. Franke, 247 Ky. 758, 57 S.W. 2d 969 (1933). . Consolidated Gas & Equipment Co.…
  • Benita J. Zimmerman and Abe Zimmerman v. Langlais, 248 So. 2d 694 (Fla. 4th DCA 1971)
    …whether or not the conduct of Mrs. Zimmerman was the proximate cause of the collision is a jury question according to the principles mentioned in Booth v. Mary Carter Paint Company, Fla.App.1966, 182 So. 2d 292, and Wisdom v. Nickels, Fla.App.1968, 212 So. 2d 652. As concerns the trial court’s decision to grant plaintiffs a new trial, we are of the opinion that such constituted an abuse of discretion because it does not find a basis in the record, Dailey v. Hendricks, Fla.App.1968, 213 So. 2d 600; North Dad…
  • Melton v. Estes, 379 So. 2d 961 (Fla. 1st DCA 1979)
    …ause is an issue for the jury to determine. It “is not a question of science or legal knowledge — it is a fact to be determined in consideration of all the circumstances.” Trotter v. Hewett, 163 So. 2d 510, 511 (Fla. 3d DCA 1964); Wisdom v. Nickels, 212 So. 2d 652 (Fla. 4th DCA 1968). I would reverse the summary judgment and permit the parties to proceed to trial.…

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