Bethel Apostolic Temple v. Wiggen

• Decision Date: 05 July 1967
• Docket Number: No. 36044,36044
• Citation: 200 So.2d 797
• Parties: BETHEL APOSTOLIC TEMPLE, a nonprofit corporation, Doris R. Akins and Kathleen D. Minus, Petitioners, v. Jeff WIGGEN, as natural father of Mattie Jo Wiggen, a deceased minor, Respondent.
• Court: Florida Supreme Court

Page 797

200 So.2d 797

BETHEL APOSTOLIC TEMPLE, a nonprofit corporation, Doris R. Akins and Kathleen D. Minus, Petitioners, v. Jeff WIGGEN, as natural father of Mattie Jo Wiggen, a deceased minor, Respondent.

No. 36044.

Supreme Court of Florida.

July 5, 1967.

Rehearing Denied July 27, 1967.

Dean, Adams, George & Wood and Jeanne Heyward, Miami, for petitioners.

Frates, Fay, Floyd & Pearson, Miami, for respondent.

CALDWELL, Justice.

This cause is here on petition for writ of certiorari alleging jurisdictional conflict with the Yousko ¹ decision.

The only question presented is whether the trial judge committed reversible error in refusing to charge the jury on the doctrine of last clear chance.

The facts are the minor deceased, Mattie Jo Wiggen, was struck by a school bus owned by petitioner, Bethel Apostolic Temple, a non-profit corporation which conducted a kindergarten, and driven by petitioner, Kathleen D. Minus, a teacher and bus driver. Petitioner Minus testified that, because she was familiar with the area where many children played in the afternoon, she was operating the vehicle with special care at between 10--15 miles per hour wheh she felt something strike the bus and that, although she was looking straight ahead, she did not see the deceased until after the accident. The accident occurred in a 30-mile speed zone, on a street seventeen feet eight inches wide with no center line on which cars were parked on both sides. The only eyewitness was a seven or eight year old child.

The investigating officer testified the bus was traveling between 15--20 miles per hour prior to impact, that there were three dents on the front of the bus, one on each side and one in the middle, any one of which could have been the point of impact between the child and the bus. He said, also, without giving evidentiary basis therefor, that deceased ran into the street from the south side. The witness Doris Akins, having talked with Jeff Hall, the seven or eight year old eyewitness, testified she could not determine whether the children entered the street from the north or south.

The trial court declined to charge the jury on last clear chance and the District Court of Appeal, Third District, reversed, holding there was more 'than a mere possibility that the driver, in the exerise of ordinary prudence, should have become aware of the deceased as she moved from the south side of the street crossing the strip leading to the edge of the street and then traveling at least eleven feet four inches on the street directly in front of the bus. Since a vehile going fifteen miles per hour travels only 15--17 feet during the average reaction time, the jury could have found that the driver had an opportunity, by the exercise of reasonable care, to avoid hitting the deceased by putting on her brakes and slowing down to allow the child to pass, by swerving the bus or by stopping.' ²

But the evidence disclosed by the record is conjectural and speculative. It is uncertain where the deceased was prior to the accident, how or from what direction she reached the point of...