Red Top Cab & Baggage Co. v. Masilotti, 13337.

• Decision Date: 29 August 1951
• Docket Number: No. 13337.,13337.
• Parties: RED TOP CAB & BAGGAGE CO. et al. v. MASILOTTI et al.
• Court: U.S. Court of Appeals — Fifth Circuit

190 F.2d 668 (1951)

RED TOP CAB & BAGGAGE CO. et al. v. MASILOTTI et al.

No. 13337.

United States Court of Appeals, Fifth Circuit.

July 13, 1951.

Rehearing Denied August 29, 1951.

S. J. Powers, Jr., T. J. Blackwell, Miami, Fla., for appellant.

Wm. Clinton Green, Miami, Fla., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.

RUSSELL, Circuit Judge.

The appellants are the owners and operators of taxicabs as common carriers. The four appellees, Hugo Masilotti, Rudolph Ciancaglini, Sharon Sirt, and Jeanette Miles, were passengers in a taxicab of appellants being driven by one Cochran, and were injured when the taxicab collided with an automobile driven by one John K. Jones. Each appellee brought a separate action against appellants and Jones to recover damages for their injuries, alleged to have been caused by the concurring negligence of Cochran, the taxicab driver, and Jones. The actions, identical in substance, were consolidated for trial. The jury trying the cases, as thus consolidated, returned verdicts in favor of each of the appellees against the alleged joint tort feasors, the Red Top Cab & Baggage Company and Royal Palm Transfer Company, the appellants, and John K. Jones. The named corporate defendants are the appellants here, and urge as grounds for reversal that the Court erred in sustaining a motion to strike their sixth defense; in refusing to adjudge that the evidence was insufficient to support a recovery against them, as urged, both upon the trial by motion for judgment, and afterwards, by motion for judgment notwithstanding the verdict; and in the giving of specified charges to the jury.

The record is voluminous and the testimony is conflicting as to the immediate circumstances of the collision. On September 19, 1946, between 1:30 and 2:00 o'clock, A. M., the appellees, who had been passengers on an airplane from Cuba, entered the taxicab at the Miami International Airport, as paying passengers. The taxicab departed from the airport with its passengers and proceeded in an easterly direction on Northwest 36th Street. It had traveled only a few blocks when it collided apparently "head on" with the automobile being driven by Jones, which was proceeding in a westerly direction. There was evidence on behalf of the plaintiffs, which the jury was authorized to credit, to the effect that one of the appellees was considerably airsick following the flight, and was "nauseous". The other passengers were solicitious of her condition and were discussing possible remedies. The driver of the cab joined in the discussion, suggesting black coffee, and in his conversation turned his head to speak to one of the passengers, while traveling at a speed of 40 to 45 miles per hour, and "not looking toward the road," at the same time, the car driven by Jones was approaching, blinking his lights off and on in front of the taxicab, and approximately 75 feet from it. At least one of the passengers yelled, (and probably another made outcry), "Look out, we are going to have a collision". Up to that point, the driver had his head turned and was not looking toward the approaching car. The cab did not swerve or slacken speed and the collision occurred about the middle of the highway.

Jones testified that as his car approached within approximately 200 feet of the taxicab he noticed the very bright lights of the cab and proceeded to dim the lights on his car. He did this three or four times, but the cab did not dim its lights. Other passengers in the Jones car testified that the lights of the taxicab were on "high beam" and that the beam was not at any time depressed. When Jones was within 75 to 100 feet he switched his lights on and off about two times to attract the attention of the approaching cab. He could not say which side of the highway he was on at the time of the collision because he was blinded by the lights of the taxicab. At the time of the impact he had slowed his speed from 25 miles per hour to about 15.

The taxicab driver testified that he had driven approximately four blocks from the 36th Street Airport when he saw Jones' car, without any lights on, whip out from behind some other cars and come over on the left hand side of the road. At the time, he was driving the cab on the extreme south side of 36th Street at a speed of approximately 30 miles per hour, his headlights were on the low or dimmer beam, and his attention had not been diverted by the conversation of the passengers. He first saw Jones' car when it was 70 to 100 feet from him and driving directly toward the cab. He then pulled the cab to the left about 4 or 5 feet and reduced his speed to about 10 miles per hour in an attempt to avoid the collision, but before he was out of a position of danger the two automobiles collided head on.

Of the several witnesses who testified as to where the collision took place, with reference to the center of the road, the majority placed it at, or near, the center, although others placed it further to the south side of the highway.

We conclude, upon consideration of all the evidence, that the rulings of the Court, which enforced its determination that the evidence favorable to the contentions of the plaintiffs was sufficient, if credited by the jury, to legally authorize recoveries by the plaintiffs, were not erroneous. The conflict between the testimony of the cab driver as to the attention he was giving to, and care he was exercising in, the operation of his vehicle, and that of the passengers, which indicated that he was not properly directing his attention to the operation of the vehicle, but was looking away from the street at the time of the collision, and other conflicts in the testimony, were questions properly to be determined by the jury. Likewise was it for the jury, upon consideration of all the testimony, to determine whether the negligence of Jones was so great and became apparent so suddenly that it created an emergency which the taxicab driver could not, by the exercise of due diligence, avoid. The same is true as to whether the lights of the taxicab were, on approaching the other car, illegally on "high beam", or on "low beam", as required, and as to the disputed matter of the speed at which the taxicab was being operated, and its location upon the highway. All these, and others appearing in the record, were disputed factual questions properly subject to be answered by the jury. The answer thus made, that the drivers of both cars were negligent, implicit in...