Barr v. Mizrahi, 1808

• Decision Date: 26 October 1960
• Docket Number: No. 1808,1808
• Citation: 124 So.2d 508
• Parties: Thomas G. BARR and Emma Kate Richards Barr, Appellants, v. Morris MIZRAHI and Abe Matut, Appellees.
• Court: Florida District Court of Appeals

Page 508

124 So.2d 508

Thomas G. BARR and Emma Kate Richards Barr, Appellants, v. Morris MIZRAHI and Abe Matut, Appellees.

No. 1808.

District Court of Appeal of Florida, Second District.

Oct. 26, 1960.

Rehearing Denied Dec. 2, 1960.

Harry M. Hobbs, Tampa, for appellants.

Thomas C. MacDonald, Jr., and William T. Keen; Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for appellees.

ALLEN, Chief Judge.

The appellants, as plaintiffs in the lower court, sought damages by their amended complaint for personal injuries received when an automobile owned by plaintiff Kate Barr, and being driven by plaintiff Thomas G. Barr, was involved in an intersection collision with an automobile owned by defendant Abe Matut and being driven by defendant Morris Mizrahi. The defendants answered alleging that plaintiff driver's contributory negligence was the proximate cause of the accident. After a trial on the issues the jury found for the plaintiffs awarding them $4,278.58 in damages. The defendants moved to set aside the verdict and to enter judgment in accordance with their prior motion for directed verdict upon which the court had reserved its ruling. The defendants also filed a motion for a new trial on the same date.

The court thereafter entered judgment for the defendants stating that plaintiff was guilty of contributory negligence as a matter of law.

At approximately 7:15 A.M. on November 20, 1958, the defendant Mizrahi was operating an automobile owned by the other defendant, Matut, in a westerly direction on Azeele Avenue approaching the intersection of Albany Avenue in Tampa. The plaintiff, Thomas G. Barr, was operating an automobile owned by his wife, Emma Kate Richards Barr, in a southerly direction on Albany Avenue approaching the intersection. The two automobiles collided upon entering the intersection. This intersection of Azeele and Albany Avenues is an 'uncontrolled' or 'free' intersection with no posted traffic controls. The plaintiff's vehicle had travelled approximately 16 feet into the intersection and the defendant's vehicle had travelled approximately 15 feet into the intersection before the impact. The speed of the defendant's vehicle was 12-15 miles per hour and the speed of the plaintiff's vehicle was 15 miles per hour.

The plaintiff had an unobstructed view of approximately one block to his left down Azeele Avenue, the direction from which the defendant's vehicle was approaching. The plaintiff stated that he looked to the left and to the right but that he saw the defendant's vehicle when it was only a couple of feet away. The defendant driver testified on cross-examination that he did not see the plaintiff's automobile until it was across the intersection; that he thought plaintiff was going to make it across; and that in view of the defendant's slow rate of speed his brakes were not applied. There was some question about the visibility through the windshield and right windows of the defendant's automobile. The defendant stated that he had cleaned the dew off of the windshield and right window prior to leaving home but that at the time of the accident the windows were 'shadowy.' A city of Tampa police officer, W. H. Cromer, testified concerning the condition of the defendant's automobile as follows:

'Q. Now, in observing the car, did you notice anything unusual concerning the appearance of the 1955 Pontiac driven by Morris Mizrachi? (sic) A. Yes sir, the car was covered with heavy dew on the windshield and windows.

'Q. Did you have occasion to get into the car? A. Yes sir.

'Q. While in the car, did you attempt to look through the right window of the automobile? A. Yes sir.

'Q. Could you see? A. No sir.

'Q. How about the front, the condition of the glass where the wipers were? A. Well, it had wiped there, but where it had not wiped, there was dew.

'Q. As far as the condition, could you see through it? A. No sir.'

The applicable ordinance for an uncontrolled intersection provides that the one entering the intersection first shall have the right of way but that if two vehicles enter at the same time the one on the right shall have the right of way. In his order setting aside the jury verdict and entering judgment for the defendant, the court stated:

'The evidence is conflicting as to whether or not defendant, Morris Mizrahi, was guilty of negligence in the operation of the car but the state of such evidence is that the jury was warranted in finding, as they did in their verdict, that he was guilty of negligence. This leaves only the question of whether or not plaintiff, Thomas G. Barr, was guilty of contributory negligence in the operation of his car. It clearly appears from his own testimony appearing in the record in his cross-examination by counsel for defendants, that plaintiff, Thomas G. Barr, was guilty of contributory negligence, thus preventing plaintiffs' recovery, and I am impelled to so find.' (Emphasis added.)

The considerations and principles which would warrant a trial judge to grant a reserved motion for a directed verdict...