Arnold v. Stewart

• Decision Date: 12 March 1958
• Docket Number: No. 260,260
• Citation: 101 So.2d 61
• Parties: Alan F. ARNOLD, Appellant, v. Clara M. STEWART, Appellee.
• Court: Florida District Court of Appeals

Page 61

101 So.2d 61

Alan F. ARNOLD, Appellant, v. Clara M. STEWART, Appellee.

No. 260.

District Court of Appeal of Florida, Second District.

March 12, 1958.

Frank Muscarella, Jr. (of Muscarella & Perenich), Clearwater, for appellant.

Baya M. Harrison, J., (of Mann, Harrison, Roney, Mann & Masterson), St. Petersburg, for appellee.

SHANNON, Judge.

This appeal is from a directed verdict for the defendant at the close of plaintiff's evidence. It was an action for damages from the alleged negligence of the operator of a motorcycle striking a pedestrian, who was attempting to cross the highway. There was an answer denying negligence and setting up contributory negligence.

The facts, as put into the record on behalf of the plaintiff, showed that the pedestrian was walking across a street in the City of Clearwater in the daytime and that when he was struck, he was walking to the northeast and had gotten over the centerline to a point from one to three feet. According to his testimony, he had looked both to his right and left before he started to cross the street and could see no traffic. He didn't look to his left or right again. The point where he attempted to cross the street was not at a crosswalk. The operator of defendant's motorcycle, by his own admission, was at a distance of 30 to 64 feet when he saw the plaintiff and, by his own admission, he was proceeding east at 20 or 25 miles per hour. The defendant's operator also stated that he first applied his brakes quite gently and then, within a distance of two or three feet, he hit his brakes hard and swerved to the left.

There were two witnesses, one of whom was Clifton and the other was Mitchell. The substance of Mitchell's testimony was that the appellant started to cross the street by walking in front of a car, which was parked at the south side and that the impact took place two or three feet south of the centerline of the street. From Clifton's testimony there were no cars parked on the south side of the street at all and immediately after he saw the plaintiff starting to cross the highway, he noticed that the motorcycle was a considerably further distance than 30 to 64 feet from the plaintiff. If we accept Clifton's testimony, or even if we accept the testimony of the operator of the defendant's motorcycle that he was 64 feet away from the plaintiff at the time he first saw him, there will be sufficient evidence to take this case to a jury. Regardless of all other testimony except the plaintiff's, he was walkign slowly and had proceeded some 21 feet when he was struck.

The trial judge found, as a matter of law, that the operator of the defendant's motorcycle was guilty of no negligence.

The appellant urges that the Court erred in not submitting the case to the jury on the doctrine of last clear chance.

While the evidence on behalf of plaintiff is not strong, there is evidence from which a jury could find for the plaintiff.

In McAllister v. Miami Daily News, 1944, 154 Fla. 370, 17 So.2d 613,...