FILOMENA M. BARRY, APPELLANT,
v.
GREYHOUND LINES, INC., A FOREIGN CORPORATION AND JOSEPH PATRICK GARVEY, JR., INDIVIDUALLY, APPELLEES

Fla. 2d DCA | 1968-12-11
No. 68-142
LILES, C. J., and PIERCE, J., concur.
216 So. 2d 775 Florida District Court of Appeal, Second District (1968) Positive Treatment
Cited by 3 cases

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Synopsis

Filomena Barry, a passenger in a car that ran a stop sign and red light, appealed the admission of traffic engineer testimony regarding average vehicle speeds on U.S. 41 to defeat her negligence claim against a Greyhound bus driver. The Florida District Court of Appeal affirmed the trial court's admission of the statistical evidence of average speeds as probative of the bus driver's reasonable conduct.


Holding

Statistical evidence of average speeds based on accurate measurements under substantially the same circumstances at the same location, in sufficient numbers to be statistically reliable, is admissible as evidence of reasonable conduct where the reasonableness of unimpeded traffic speed is at issue and not specifically regulated by law.


Key Quotes

“where reasonableness of speed of unimpeded traffic, not specifically regulated by law, is in issue, accurate measurements under substantially the same circumstances at the same spot in sufficient number to make the arithmetic mean statistically reliable may be admitted as evidence of reasonable conduct”

States the narrow holding establishing when statistical average speed evidence is admissible to prove reasonable conduct

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Facts & Procedural History

A Greyhound bus traveling northbound on U.S. 41 at the speed limit of 65 mph was approaching Gowers Corner, marked by a yellow blinker requiring cauti…

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Opinion of the Court
MANN, Judge.

*776MANN, Judge.

The speed limit on either side of Gowers Corner on U. S. 41 is 65 miles per hour. A yellow blinker at the intersection of State Road 52 required appellee’s bus northbound on U. S. 41 to “proceed through the intersection or past such signal only with caution”, Florida Statutes § 317.-063(1) (b) (1967), F.S.A. Appellant, a passenger in a car driven in a westerly direction on State Road 52 into the intersection despite a stop sign and red blinker, objected to the admission of testimony by a traffic engineer as to the average speed of vehicles driven on U. S. 41 past this intersection. It is undisputed that the bus slowed to about 55 miles per hour, less than the timed average at the intersection.

The trial judge determined that the circumstances were substantially the same on the dates nearly three years after the accident when the traffic was timed. The measurement was determined to be done with reasonable scientific accuracy. Hundreds of vehicles were timed, and only those were omitted which were stopping or turning at the intersection or those which came so close together or in such rapid succession that they could not be timed.

Cucinella v. Weston Biscuit Co., 42 Cal.2d 71, 265 P.2d 513 (1954), reversing 257 P.2d 454 (Cal.App.1953) has not the persuasive authority appellee claims for it. An estimate of average speed in excess of the legal limit was admitted as evidence of contributory negligence on the part of a pedestrian who knew the street well and darted back in panic after reaching the center, whereupon she was struck by a vehicle going 36 miles per hour in a 25-mile zone, but this testimony was not offered to prove absence of negligence on the driver’s part.

However, in the case before us there was no specific statutory standard, and admission of the average of a sufficiently large number of instances of crossing under substantially the same conditions, timed with reasonable accuracy, is evidence on which the jury might ground an inference that the bus driver was not negligent. Objections which the appellant had to admission of this evidence on the ground of change in conditions should have been accompanied by some factual proof to the trial judge to contradict the predicate laid by defendants. We are asked to take judicial notice that traffic “in Florida” is heavier around Christmas, when the measurements were made, than on March 25, the date of the accident. This would be bad practice on our part. Our rules afford adequate opportunity to counsel to determine traffic counts at various times on any of our highways. The evidence admitted at the trial of this case is of more probative value than any presuppositions of ours.

We affirm on the narrow ground that where reasonableness of speed of unimpeded traffic, not specifically regulated by law, is in issue, accurate measurements under substantially the same circumstances at the same spot in sufficient number to make the arithmetic mean statistically reliable may be admitted as evidence of reasonable conduct. The trial judge has sufficient opportunity to differentiate between evidence of genuine probative worth and mere forensic gimmickry. See Fuller v. State, 159 Fla. 200, 31 So.2d 259, 263 (1947); annotations, 77 A.L.R.2d 1327, 172 A.L.R. 1141.

Affirmed.

LILES, C. J., and PIERCE, J., concur.


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Cited By

  • White v. Seaboard Coast Line R.R. Co., 227 So. 2d 227 (Fla. 2d DCA 1969)
    …MANN, Judge. Appellant asks us to reconsider our affirmance without opinion, suggesting that we have applied here a different standard from that applied in Barry v. Greyhound Lines, Fla.App.1968, 216 So. 2d 775. There we upheld the sound judgment of a trial judge who admitted testimony of measure [*228] ments of speed of vehicles passing through an intersection marked by a caution signal and to which no specific statutory standard applied. That the trial j…
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