VIVIAN R. HURST, EXECUTRIX OF THE ESTATE OF MARION P. HURST, DECEASED, AND VIVIAN R. HURST, INDIVIDUALLY AS SURVIVING WIDOW OF MARION P. HURST, APPELLANTS,
v.
ALLEN KRINZMAN, A MINOR, APPELLEE

Fla. 3d DCA | 1970-06-23
No. 70-10
Before PEARSON, C. J., and CHARLES CARROLL and HENDRY, JJ-
237 So. 2d 333 Florida District Court of Appeal, Third District (1970) Positive Treatment
Cited by 14 cases

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Holding

The court held that the plaintiff's failure to look before stepping backward did not constitute contributory negligence as a matter of law, as there was no reasonable basis to apprehend danger from that direction.


Headnotes

[1] A trial court should not direct a verdict for the defendant unless there is no evidence that could support a verdict for the plaintiff.

[2] An appellate court reviewing a directed verdict must consider the testimony in the light most favorable to the plaintiff, disregarding conflicts and indulging every reaso…

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Facts & Procedural History

The plaintiff, while conversing with a police officer, stepped backward from a police car and was struck by a bicyclist. The bicyclist had been riding…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This appeal is by the plaintiff below, Marion P. Hurst (since deceased) from an adverse judgment based on a directed verdict entered on defendant’s motion following presentation of evidence by plaintiff.

Established by Florida decisions so numerous as to preclude a need for their citation, are the rules that a trial court should not direct a verdict for defendant unless it is clear that there is no evidence whatever adduced that could in law support a verdict for plaintiff; and that an appellate court, on review of a judgment based on a directed verdict for defendant should consider the testimony adduced in the cause in the light most favorable to the plaintiff, disregarding conflicts in the evidence and indulging in the plaintiff’s favor every reasonable intendment deducible from the evidence.

Upon so viewing the record we observe evidence disclosing the following facts. The incident occurred at a principal street intersection in a municipality in Dade County. The plaintiff, who was unfamiliar with that area, after transacting certain business there was desirous of returning by bus to his home in another nearby municipality. As he was standing on the corner, a police car pulled up to the intersection and stopped in obedience to a red light. The police car was positioned five feet from the curb. Plaintiff stepped over to the police car, and, leaning partly into the right-hand front door window area, proceeded to inquire of the officer as to bus routes. When the light changed to green and the police car was about to move off, the plaintiff took a step backward. As he did so he was struck by a 14 year old boy riding a bicycle. The boy tried to avoid the collision, but struck the plaintiff with his shoulder. Plaintiff was knocked to the ground and thereby received his injuries.

Coming from the opposite direction to that in which the police car was headed, the boy had approached the other side of the intersection riding on the sidewalk. He had crossed the intersection while traffic was stopped, by riding his bicycle across at the side of the intersection, in the area marked for pedestrians, while a “walk” light permitted pedestrian crossing. Upon reaching the side of the intersection where the police car was stopped, the bicyclist continued, passing between the police car and the curb, on the left-hand side of the street as to him, and proceeding against the direction or flow of traffic there.1

The appellee argues that the plaintiff was guilty of contributory negligence as a matter of law when he stepped backward from the police car toward the curb without first looking to his right in order to guard against the possibility that some cycle type vehicle (there was not room between the police car and the curb for an automobile to pass) might be approaching from that direction (which would be on the wrong side of the street and against the direction permitted for traffic there.) The trial judge appears to have espoused that theory as a basis for granting a directed verdict for the defendant.2

*335The appellant argues that the conclusion reached by the trial judge in that respect was incorrect, contending that failure of the plaintiff to look to his right, before taking a step backward to disengage himself from the police car which was about to pull away, did not constitute negligence as a matter of law, because under the circumstances there was no reasonable basis for the plaintiff to have expected any such danger to come from that direction. With that position taken by the appellant we are in agreement.

“It is not contributory negligence to fail to look out for danger when there is no reason to apprehend any. Berlin v. Southgate Corp., Fla.App.1962, 142 So.2d 362; Mertz v. Krueger, Fla. [1952], 58 So.2d 160; First Federal Savings & Loan Ass’n of Miami v. Wylie, Fla. [1950], 46 So.2d 396; Dempsey-Vanderbilt Hotel v. Huisman, 153 Fla. 800, 15 So.2d 903; Sears, Roebuck & Co. v. Geiger, 123 Fla. 446, 167 So. 658; Crosby v. Donaldson, 95 Fla. 365, 116 So. 231; Southern Express Co. v. Williamson, 66 Fla. 286, 63 So. 433, L.R.A. 1916C, 1208; J. G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45. * * *” Foulk v. Perkins, Fla.App.1966, 181 So.2d 704.

In view of the principle of law just quoted, and that questions of negligence and contributory negligence generally are matters for jury determination, we are impelled to conclude that the evidence presented triable issues of negligence and contributory negligence, and that it was error to hold on such evidence that the plaintiff was contributorily negligent as a matter of law.

Accordingly, the judgment is reversed and the cause remanded for new trial.


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Cited By

  • Forster v. RED TOP Sedan Serv., Inc., 257 So. 2d 95 (Fla. 3d DCA 1972)
    …the light of the record, briefs and arguments of counsel and have concluded that the trial judge erred in directing a verdict for the defendant in that it is not in accord with the rules enunciated by this court in Hurst v. Krinzman, Fla.App. 1970, 237 So. 2d 333, and numerous other appellate decisions of the courts of Florida. It appears to us that upon consideration of all the testimony and varying inferences and conclusions there were issues of fact which should have been submitted to a jury, under prope…
  • …and coverage desired. Blumberg v. American Fire & Casualty Co., Fla.1951, 51 So. 2d 182. Therefore, for the reasons stated and upon the authorities cited, the judgment appealed from is hereby reversed. Reversed. . Hurst v. Krinzman, Fla.App.1970, 237 So. 2d 333.…
  • …the party moved against. Jones v. Hoffman, Fla.App.1970, 239 So. 2d 76 On appeal, the reviewing court must likewise consider the evidence adduced in the cause in the light most favorable to the party moved against. Hurst v. Krinzman, Fla.App. 1970, 237 So. 2d 333. In the instant case, we have determined that there was evidence adduced favorable to plaintiff. At the time of the transfers, defendant was the trust officer of the bank who handled the Balches’ account. This fact does not of itself show that defe…

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