HAZEL J. JONES, APPELLANT,
v.
PHILIP FRANCIS HOFFMAN, JR., AND PAV-A-WAY CORPORATION, A FLORIDA CORPORATION, APPELLEES; HAZEL J. JONES, AS ADMINISTRATRIX OF THE ESTATE OF WILLIAM HARRISON JONES, JR., DECEASED, APPELLANT, V. PHILIP FRANCIS HOFFMAN, JR., AND PAV-A-WAY CORPORATION, A FLORIDA CORPORATION, APPELLEES

Fla. 4th DCA | 1970-07-29
Nos. 69-470, 69-471
CROSS, C. J., and MacMILLAN, HUGH, Associate Judge, concur.
239 So. 2d 76 Florida District Court of Appeal, Fourth District (1970) Positive Treatment
Cited by 8 cases

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Synopsis

Hazel Jones appealed the trial court's directed verdict in favor of defendants in a wrongful death action arising from a collision between her husband's Karman Ghia and a Mack dump truck operated by Philip Francis Hoffman, Jr. and owned by Pav-A-Way Corporation. The appellate court reversed, holding that the evidence presented genuine issues of fact regarding negligence, contributory negligence, and proximate cause that should have been submitted to a jury.


Holding

The appellate court held that the trial court erred in granting the directed verdict because the evidence, when viewed in favor of the non-moving party (plaintiff), demonstrated that reasonable men could differ on the ultimate facts of negligence, contributory negligence, and proximate cause. Therefore, these issues should have been submitted to the jury rather than resolved by directed verdict.


Headnotes

[1] A trial court must accept as true all evidence and reasonable inferences therefrom that support the party moved against when ruling on a motion for a directed verdict.

[2] Conflicts in evidence must be disregarded or resolved in favor of the party moved against when considering a motion for a directed verdict.

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Key Quotes

“In passing on a motion for directed verdict the trial court must accept as true all of the evidence and reasonable inferences therefrom which tend to support the position of the party moved against.”

Establishes the standard of review for directed verdict motions—the trial court must view all evidence and inferences in favor of the non-moving party.

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Facts & Procedural History

On May 24, 1967, at approximately 8:10 a.m., a collision occurred on U.S. Route 1 near Eau Gallie, Florida, at the intersection with South Wickham Roa…

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Opinion of the Court
REED, Judge.

REED, Judge.

The appellant in this case, Hazel J. Jones, filed suit in the Circuit Court for Brevard County, Florida, against the defendants, Philip Francis Hoffman, Jr., and, Pav-A-Way Corporation for the wrongful death of her husband. In her capacity as administratrix of her husband’s estate she filed a separate action against the defendants for damages to the estate of her deceased husband arising out of his death and for his pain and suffering prior to death. The two actions were consolidated for trial. Each of the complaints alleged that on or about 24 May 1967 the plaintiff’s husband while driving south on State Road 5 (U. S. 1) was involved in a collision with a Mack dump truck negligently operated by the defendant Philip Francis Hoffman, Jr., and owned by the defendant Pav-A-Way Corporation. The accident was alleged to have occurred three miles north of the City of Eau Gallie, Florida, at approximately 8:10 *77in the morning. The answers denied negligence and alleged contributory negligence of the plaintiff’s decedent. The cause was tried on 19 May 1969 before a jury. At the close of the plaintiff’s evidence a verdict was directed for the defendants and a final judgment was rendered.

The sole issue for review is whether or not the trial judge erred in granting the defendants’ motion for directed verdict.

The highway patrolman who investigated the accident described the defendant’s truck as a big dump truck with tandem rear axles and a fifteen yard capacity. A photograph in evidence shows the truck to have three rear axles and double tires on each side of the axle.

The vehicle in which the plaintiff’s decedent was riding, a Karman Ghia, came to rest in the westerly southbound lane of U. S. 1 seventy to seventy-five feet south of the intersection of U. S. 1 and South Wick-ham Road Extension according to the patrolman. South Wickham Road Extension enters U. S. 1 from the west. South Wick-ham Road Extension is shown by a photograph in evidence to intersect U. S. 1 at approximately a sixty degree angle measured counter-clockwise from U. S. 1. At that point, U. S. 1 has two southbound lanes and two northbound lanes separated by a grass median. The speed limit in the area according to the patrolman was sixty-five miles an hour, and there was a stop sign on South Wickham Road Extension for vehicles entering U. S. 1 from South Wickham Road.

The investigating officer testified that he saw scuff marks on the road (U. S. 1) which led to the Karman Ghia. These marks were fifty-five feet south of the intersection of U. S. 1 and South Wickham Road. The officer saw no skid marks behind the Karman Ghia, but the scuff marks ran slightly to the left or southeast.

The patrolman testified that he walked north from the intersection about 200 feet at which point he said a south bound driver should have been able to see a truck at the intersection of South Wickham Road and U. S. 1. According to the patrolman the visibility from South Wickham Road north along U. S. 1 was also good and the seat of the Mack truck was about nine feet high.

The only other witness for the plaintiff whose testimony is reported is a Mr. W. G. Groover, a purported eye witness. He stated that at the time of the accident he was driving north on U. S. 1 approximately a quarter of a mile south of the scene. He stated that he first saw the truck when it was on South Wickham Road at its intersection with U. S. 1.. He saw the truck enter U. S. 1 and turn south. As the truck turned, it crossed partially into the easterly southbound lane. As the truck came back into the westerly southbound lane, the Karman Ghia hit the truck from the rear. Mr. Groover also stated that he saw two other vehicles, a Mustang and a Corvette, approaching from the north. He indicated that the Corvette was to the east and rear of the Karman Ghia, but the location of the Mustang is not clear from his testimony. The Corvette was, according to Mr. Groover, passing the Karman Ghia just prior to the accident. The Karman Ghia appeared to Mr. Groover to veer to its left just prior to the accident and then straighten up as the accident occurred.

Mr. Groover testified that the Karman Ghia was going sixty to sixty-five miles an hour and the Corvette sixty-five to seventy miles per hour. Mr. Groover said that the truck, once on the highway, moved very slowly. Mr. Groover estimated that from the time the truck entered U. S. 1 until the impact three to four seconds elapsed.

After the accident the Corvette, according to Mr. Groover, stopped approximately even with the left side of the truck and the Mustang skidded off to the right hand side of the road. Mr. Groover stated at one point that the Karman Ghia was approximately 500 feet from the truck when the truck entered the intersection, but admits that in his deposition he had given testimony that the Karman Ghia was approximately 1,000 feet from the intersection at *78that time. Mr. Groover also testified that his estimates as to distance were just guesses.

In passing on a motion for directed verdict the trial court must accept as true all of the evidence and reasonable inferences therefrom which tend to support the position of the party moved against. Yarbrough v. Ball U-Drive System, Inc., Fla.1950, 48 So.2d 82. As a corollary, the trial court must disregard the conflicts in the evidence, Rodi v. Florida Greyhound Lines, Inc., Fla.1952, 62 So.2d 355, or resolve the conflicts in favor of the party moved against, Winn-Dixie Stores, Inc. v. Miller, Fla.App.1969, 220 So.2d 680. When the evidence thus viewed is such that reasonable men could fairly reach different conclusions thereon as to the ultimate facts on which liability depends, the case should be submitted to a jury. Stirling v. Sapp, Fla.1969, 229 So.2d 850.

In the present case there were conflicts in the testimony, but disregarding these, the evidence and the reasonable inferences which tend to support the plaintiff indicate that the defendant truck driver saw or readily could have seen the plaintiff’s decedent approaching the intersection from the north at a speed of approximately sixty to sixty-five miles an hour. The defendant truck driver pulled out onto the highway and into the southbound lane occupied by plaintiff’s decedent when the plaintiff’s decedent was approximately 209 feet north of the intersection.1 The plaintiff’s decedent was unable to go around the truck because of an adjacent vehicle to the east. When the evidence is thus viewed, it is our opinion that reasonable men could differ thereon as to the ultimate facts of negligence, contributory negligence, and proximate cause. We, therefore, conclude that the issues thereon should have been submitted to the jury.

We have not overlooked the appellees’ contention that the plaintiff’s own witness testified that the plaintiff’s decedent was 500 to 1,000 feet north of the intersection when the defendant truck driver pulled onto U. S. 1 and the appellee’s conclusion based on that testimony that the plaintiff’s decedent had ample time within which to stop. This testimony relied on so heavily by the appellees was expressly stated by the witness to have been an estimate. The witness’ position south of the point of accident was such as to have made the estimate a difficult one to formulate with any degree of accuracy. For purposes of the motion for directed verdict, the estimate certainly could not be accepted as an established fact.

The judgment appealed is reversed and the cause remanded for a new trial.

Reversed and remanded.

CROSS, C. J., and MacMILLAN, HUGH, Associate Judge, concur.


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Citator

Cited By

  • Kelly v. Millers OF Orlando, Inc., 294 So. 2d 704 (Fla. 4th DCA 1974)
    …asonable inferences therefrom which tend to support the position of the party moved against. As a corollary, the trial court must disregard the conflicts in the evidence or resolve the conflicts in favor of the party moved against. Jones v. Hoffman, 239 So. 2d 76 (Fla.App.1970); National Bank of Melbourne & Trust Company v. Batchelor, 266 So. 2d 185 (Fla.App.1972), and it is error for a trial court to direct a verdict unless there is no evidence nor any reasonable inference which may be drawn from the eviden…
  • …nces therefrom which tend to support the position of the party moved against. As a corollary, the trial court must disregard the conflicts in the evidence, or resolve the conflicts in favor of 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 wa…
  • Levine v. Frank, 311 So. 2d 708 (Fla. 3d DCA 1975)
    …laintiff and any conflict in the evidence must be resolved in favor of the plaintiff. Beagle v. Bagwell, Fla.App.1968, 215 So. 2d 24, 26; Thee v. Manor Pines Convalescent Center, Inc., Fla.App. 1970, 235 So. 2d 64. In Jones v. Hoffman, Fla.App.1970, 239 So. 2d 76, the court states at page 78 that “(i)n passing on a motion for directed verdict the trial court must accept as true all of the evidence and reasonable inferences therefrom which tend to support the position of the party moved against.” After caref…

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