MARIANNE D. ZUTELL AND CHARLES T. ZUTELL, SR., APPELLANTS,
v.
SUNRISE OLDSMOBILE, INC., A FLORIDA CORPORATION, AND CATHERINE CANOVA, APPELLEES
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Appellants appealed a jury verdict in favor of Sunrise Oldsmobile and Catherine Canova in a negligence case, challenging the sufficiency of evidence, the jury instruction on contributory negligence, and the denial of a last clear chance instruction. The appellate court affirmed the judgment, finding substantial evidence supported the verdict and the trial court properly managed jury instructions.
The trial court did not err in denying the motion for directed verdict or the motion for new trial, as substantial evidence supported the jury's findings. The court properly instructed the jury on contributory negligence and correctly refused to instruct on last clear chance because the factual elements necessary to invoke that doctrine were absent from the evidence.
[1] A judgment of the trial court is presumed correct on appeal.
[2] Appellate courts will not substitute their judgment for that of the triers of fact when substantial evidence supports the jury's findings.
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Join FLexlaw to unlock all legal intelligence“the evidence is conflicting and subject to different reasonable inferences which may be drawn therefrom, there is substantial evidence to support the findings made by the jury and the conclusions reached by the trial court”
Establishes the standard for appellate review of jury verdicts and the presumption of correctness accorded to trial court judgments.
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Join FLexlaw to unlock all legal intelligenceThis case involved a dispute between the Zutells and Sunrise Oldsmobile, Inc., and Catherine Canova. The record reflects conflicting evidence subject …
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Appellants seek review of an adverse final judgment based upon a jury verdict rendered in favor of appellees. The questions on appeal concern the sufficiency of the evidence to support the verdict; the court’s instruction to the jury on the defense of contributory negligence interposed by appellees; and refusal of the court to instruct the jury on the doctrine of last clear chance as requested by appellants.
In our review of the issues presented for decision, we have given due consideration to the applicable principle that a judgment of the trial court reaches the appellate court clothed with a presumption of correctness. The record reveals that, although the evidence is conflicting and subject to different reasonable inferences which may be drawn therefrom, there is substantial evidence to support the findings made by the jury and the conclusions reached by the trial court. It is not the province of this court to substitute its judgment for that of the triers of the facts. These findings will not be disturbed in the absence of a clear showing that the trial court committed prejudicial error or that the evidence demonstrates that the conclusions reached are *823erroneous.1 For the foregoing reasons, we hold that the trial court did not err in denying appellants’ motion for a directed verdict on the issue of liability as to appel-lee Sunrise Oldsmobile, Inc., nor did it abuse its discretion in denying appellants’ motion for a new trial grounded upon the premise that the verdict is contrary to the manifest weight of the evidence.
At no time during the conference on instructions to the jury, nor at any time thereafter, did appellants object to the court’s instruction on the issue of contributory negligence raised by the defenses interposed by each appellee. Such objection may not be raised for the first time on appeal as has been attempted herein by appellants.2 Even had objection been timely made, we find in the record sufficient evidence to carry this issue to the jury and the court’s instruction thereon was therefore proper and necessary.
We cannot agree with appellants’ contention that the court erred in denying their request for an instruction on the doctrine of last clear chance. It has been pointed out that this instruction should be sparingly given, and then only under such factual presentation as clearly warrants the application of the principle to the issues in the case.3 We fail to find in the evidence proof of the requisite elements necessary to activate the doctrine of last clear chance. It is our view that the trial court correctly rejected such request as unsupported by the evidence in the case and refused to instruct the jury thereon.4
The judgment appealed is affirmed.
SPECTOR, C. J., and WIGGINTON and JOHNSON, JJ., concur.
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Baker v. Baker, 394 So. 2d 465 (Fla. 4th DCA 1981)…t come to this court clothed with a presumption of correctness and will not be disturbed absent a showing that there was no competent evidence to sustain them. Kirk v. Edinger, 380 So. 2d 1336 (Fla. 5th DCA 1980); Zutell v. Sunrise Oldsmobile, Inc., 252 So. 2d 822 (Fla. 1st DCA 1971). To modify or set aside a property settlement agreement, it is incumbent upon the party seeking to abrogate the agreement to allege and prove fraud, duress, deceit, coercion or overreaching by the other party. Zedeck v. Zedeck,…
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Lollie v. Gen. Motors Corp., 407 So. 2d 613 (Fla. 1st DCA 1981)…d fails to disclose one. Where during the conference on instructions to the jury a party fails to object to the court’s instruction, an objection to the instruction may not be raised for the first time on appeal. Zutell v. Sunrise Oldsmobile, Inc., 252 So. 2d 822 (Fla. 1st DCA 1971); see also Rule 1.470(b), Fla.R.Civ.P. We decline, therefore, to rule on plaintiffs’ challenge to the jury instructions noted above. II. Plaintiffs’ next contention challenges the admission into evidence of Federal Motor Vehicle…
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Sears v. McAFOOS, 303 So. 2d 336 (Fla. 3d DCA 1974)…s. Appellants having failed to make timely objection to the complained of expert testimony at the trial, they now are precluded from raising the same as error for the first time on appeal. See e. g. Zutell v. Sunrise Oldsmobile, Inc., Fla.App. 1971, 252 So. 2d 822. Further, the error on the part of plaintiff’s expert was caused in part by the negligence of the defendants in supplying plaintiff with the drawings and design data not only for the 8 foot ladder but the 10, 12 and 14 foot ladders and therefore app…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- OLD Equity Life Ins. Co. v. Franklyn Levenson, 177 So. 2d 50 (Fla. 3d DCA 1965)
- LEE Cnty. OIL Co., Inc. v. Marshall, 98 So. 2d 510 (Fla. 1st DCA 1957)
- Stoller v. Jaffe, 125 So. 2d 310 (Fla. 3d DCA 1960)
- Bethel Apostolic Temple v. Wiggen, 200 So. 2d 797 (Fla. 1967)
- Perdue v. Copeland, 220 So. 2d 617 (Fla. 1969)
- Smith v. Tantlinger, 102 So. 2d 840 (Fla. 2d DCA 1958)