FERNANDO MARCANO, A/K/A FRED MARCANO, ETC., ET AL., APPELLANTS,
v.
ANTE PUHALOVICH ET AL., APPELLEES

Fla. 4th DCA | 1978-09-06
No. 77-972
DOWNEY, C. J., and LETTS, J., concur.
362 So. 2d 439 Florida District Court of Appeal, Fourth District (1978) Positive Treatment
Cited by 34 cases

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Holding

The court held that the trial court erred in granting a directed verdict for the defendant because the plaintiff's testimony, if believed, could support a reasonable inference of the defendant's negligence.


Headnotes

[1] A directed verdict must be granted with great caution, as it encroaches upon a litigant's right to a jury trial, and should only be granted when, as a matter of law, no r…

[2] The mere occurrence of an accident does not establish negligence; negligence must be proven by the greater weight of the evidence.

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Facts & Procedural History

A bicyclist sued a driver for damages after a collision on a bridge. The plaintiff testified he rode straight and was hit from behind, while the defen…

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Opinion of the Court
MOORE, Judge.

MOORE, Judge.

This is an action for damages alleged to have been suffered by a bicyclist as .the result of a collision between his bicycle and an automobile driven by the appellee. The parties will be referred to as they appeared in the trial court. At the close of the defendant’s case the trial court granted a directed verdict in favor of the defendant from which verdict and resulting judgment this appeal follows.

The plaintiff contends the trial erred in directing a verdict against plaintiff and in failing to grant a motion for new trial. Plaintiff also contends the court erred in taxing the costs of copies of depositions.

The facts reveal that at approximately 6:15 A.M. on February 21, 1976 the plaintiff, Fred Marcano, and a young friend were proceeding on their bicycles in single file across a bridge from which they intended to fish. The bridge consisted of two lanes, one each for travel in an easterly and westerly direction. There was also a walkway on each side of the bridge. With Fred in the lead, the boys proceeded in an easterly direction on the roadway staying as close as possible to the walkway, intending to park their bicycles at the eastern most end of the bridge and returning to fish from the north side of the bridge.

The defendant, Ante Puhalovich, and his son, also intending to go fishing, approached the bridge in defendant’s automobile from the same direction of travel as the boys on their bicycles. In order to pass the first boy the defendant moved to his left into the westbound lane of traffic, returning to the eastbound lane after successfully passing. There is conflicting evidence as to the location of the defendant’s vehicle, with respect to the east and westbound lanes of travel, immediately upon approaching the plaintiff. This conflict, however, exists in the testimony of the defendant and his son. All of the evidence reveals that the defendant had his lights on and was traveling well within the speed limit. Although not seen by the defendant, both boys testified that they had reflectors and generator lights on the front and back of their bicycles. Shortly after passing the first boy, the collision between defendant’s automobile and plaintiff’s bicycle occurred. Neither the plaintiff nor the first boy saw the actual collision. The plaintiff testified that although he did not hear the vehicle approaching him he nevertheless maintained his direction of travel in a straight line without veering to one side or the other. From this testimony he contends that defendant struck him from behind. On the other hand, the defendant testified that as he was approaching and passing the plaintiff the latter turned left (to the north) and struck his automobile on the righthand side near the right front wheel well. The only physical evidence, as depicted in photographic evidence, indicates a dent in the right fender of the vehicle some distance back from the front of the vehicle.

Upon seeing the plaintiff’s turn to the north the defendant testified that he immediately turned his vehicle to the north, crossing the westbound lane, in an attempt to avoid the collision.

Plaintiff’s entitlement to recovery depends upon the existence of negligence by the defendant in the operation of his automobile. The mere occurrence of an accident does not give rise to an inference of negligence which must be proved by the plaintiff by a greater weight of the evidence. Novitch v. Nu Way Auto Service, 315 So. 2d 203 (Fla.3d DCA 1975). Absent such proof the court would be correct in granting the directed verdict and denying the motion for new trial. In granting a motion for directed verdict, however, the court must determine that there is no evidence to support a finding for the party against whom the verdict is sought. The authority to direct a verdict must be exercised with great caution as in doing so the court is encroaching upon the right of a litigant to a jury trial and such a right should not be denied unless, as a matter of law, no reasonable inferences can be drawn from the evidence in favor of the non-moving party. Sun Life Insurance Co. of America v. Evans, 340 So. 2d 957 (Fla.3d DCA 1976).

Defendant relies heavily upon Lake v. Coe, 346 So. 2d 618 (Fla.3d DCA 1977) wherein the plaintiff testified that he did not remember anything after having worked on his motorcycle on the side of the road until he awakened at the hospital. Based upon that testimony it was the plaintiff’s contention that the defendant left the paved portion of the road and struck the plaintiff. Unlike the Lake v. Coe case the plaintiff in the instant case testified that he was on the roadway and never veered the direction of his travel on his bicycle from the straight line. If such testimony is accepted by the jury a reasonable inference arises as to the negligence of the defendant in failing to avoid the collision. Thus, the trial court was incorrect in granting the directed verdict against the plaintiff because there was a reasonable inference of negligence when the evidence is viewed in the light most favorable to the plaintiff.

Accordingly, the trial court’s order granting defendant’s motion for directed verdict is reversed and this cause is remanded with directions to grant the plaintiff a new trial. In view of this holding the trial court’s order taxing costs of copies of depositions is also reversed.

REVERSED and REMANDED.

DOWNEY, C. J., and LETTS, J., concur.


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Citator

Cited By (20 total)

  • Cassel v. Price, 396 So. 2d 258 (Fla. 1st DCA 1981)
    …e occurrence of an accident does not give rise to an inference of negligence, and is not sufficient for a finding of negligence on the part of anyone. Robinson v. Allstate Insurance Company, 367 So. 2d 708 (Fla. 3rd DCA 1979); Marcano v. Puhalovich, 362 So. 2d 439 (Fla. 4th DCA 1978); Lash v. Nolan, 321 So. 2d 104 (Fla. 4th DCA 1975); and City Cab of Orlando Inc. v. Green, 308 So. 2d 540 (Fla. 4th DCA 1975). Liability is imposed upon the landowner only if natural or artificial conditions involve an “unreason…
  • Jarrell v. Churm, 611 So. 2d 69 (Fla. 4th DCA 1992)
    …ed verdict is appropriate only where there is no evidence or there are no inferences which may be drawn from the evidence to support the position of the party moved against. Hendricks v. Dailey, 208 So. 2d 101, 103 (Fla.1968); Marcano v. Puhalovich, 362 So. 2d 439, 441 (Fla. 4th DCA), dismissed, 365 So. 2d 714 (Fla.1978). Additionally, the issue of permanency of an injury is ordinarily one to be decided by the jury. See, e.g., Colvin v. Williams, 564 So. 2d 1249, 1250 (Fla. 4th DCA 1990); Allstate Ins. Co. v…
  • Vecta Contract, Inc. v. Lynch, 444 So. 2d 1093 (Fla. 4th DCA 1984)
    …vis Rent-A-Car System, Inc., 336 So. 2d 467 (Fla. 3d DCA 1976). Only when there is no evidence or reasonable inferences drawn from the evidence to support the nonmov-ing parties’ position should a trial court direct a verdict. Marcano v. Puhalovich, 362 So. 2d 439 (Fla. 4th DCA), appeal dismissed, 365 So. 2d 714 (Fla.1978). The appellate tribunal’s concern is “whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is sub…

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