Byers v. Gunn
| Decision Date | 08 July 1955 |
| Parties | Charles F. BYERS, Appellant, v. Rachel GUNN, a minor, by W. B. Parrish, Jr., as her next friend, and W. B.Parrish, Jr., as guardian of the person and estate of Rachel Gunn, a minor, Appellees. |
| Court | Florida Supreme Court |
C. C. Howell, Jr., Luke G. Galant and Howell & Howell, Jacksonville, for appellant.
A. Z. Adkins, Jr., Fagan & Crouch and Osee R. Fagan, Gainesville, for appellee.
Appellant Byers was defendant in the Circuit Court in an action for damages brought by appellee Rachel Gunn, a minor, through her next friend and guardian, for injuries and damage allegedly resulting from the operation of the automobile of Byers by his teen-age daughter. Byers appeals from a verdict and judgment awarding $5,500 damages to Rachel Gunn for the injuries received, and $1,052.95 to her guardian for medical expenses. After an adverse ruling of the trial judge on motions by the defendant below to set aside the verdict and to enter a judgment for the appellant this appeal was perfected.
The evidence shows that the teen-age daughter of the appellant, Sarah Byers, while driving his automobile with another teen-age girl as a passenger, had stopped the car at a stop street in the vicinity of the P. K. Yonge School in Gainesville. While the car was stopped with the motor still running, Sarah was hailed by three teen-age boys and a teen-age girl who turned out to be Rachel Gunn. The three boys and the girl walked over to the automobile and asked Sarah to take them for a ride. She refused. She rolled up the windows and locked the doors on the left side of the car, and at her direction, her passenger did the same thing on the right. After a moment of conversation the three boys and Rachel proceeded to seat themselves on the front fenders and hood of the car. Two of the boys sat on the left side and Rachel and one of the boys on the right side. With these young people draped all over the automobile, Sarah started the car in motion. She started slowly but increased her speed until, according to various witnesses, she reached a speed varying from 15 to 40 miles per hour. Having proceeded around a corner and about two-thirds of another block, the driver of the car undertook to bring it to a stop, for the reason, as she stated, that 'they couldn't ride around like that all day'. Apparently, she stepped on the brake twice. The first time the car did not come to a complete stop whereupon the boys stated they began to call out to her to stop the car. She then brought the car to a full stop. After she stepped on the brake the first time, the girl on the fender, Rachel Gunn, fell off and was severely injured.
The three boys and Rachel testified that they had no intention of actually riding on the front of the car; that they did not expect Sarah to drive off with them on the outside of the car; that they were all friends and that they thought if they would just sit there Sarah would eventually give them a ride inside the car.
Sarah, in effect, testified that she saw the four of them walk up to the car; that she did not actually see Rachel on the right front fender; that one of the boys on the left side of the car was practically draped across the hood in front of the windshield and that she could hardly see where she was going. She started the car in motion because 'they just couldn't sit there.' She insisted, however, that she was not aware of the presence of Rachel on the car. Nevertheless, there was introduced into evidence a deposition taken prior to the trial in which Sarah admitted that there were two people on the left side of the car and although she said she did not remember who was on the right fender, she did concede that there were two on the right fender also.
There was a direct conflict in the testimony as to the extent to which the vision of the driver of the car was blocked by the boy stretched across the hood and, of course, there was conflicting evidence on whether or not Sarah actually could have seen the plaintiff, Rachel. The appellant-owner of the automobile and father of the youthful driver insists upon reversal on the following propositions, to wit:
1. The evidence was not sufficient to charge the driver of the car with an awareness of the presence of the plaintiff, an admitted trespasser, on the fender and that, therefore, as a matter of law she could not have been guilty of negligently injuring the plaintiff under the evidence in this case.
2. Even if the driver of the car was aware of the plaintiff's presence on the fender, still there was not sufficient evidence of negligence under the circumstances to justify a verdict for the plaintiff.
3. The plaintiff was guilty of contributory negligence and had assumed the risk of injury both as a matter of law and that the lower court should have so instructed the jury.
In urging that the evidence was insufficient to charge the driver of the automobile with the awareness of the presence of the plaintiff, the appellant relies upon an asserted rule of evidence to the effect that the driver of the car specifically and positively denied that she saw Rachel on the car and that the only evidence available to the plaintiff to show the contrary was circumstantial. He contends that under the rule applicable the inferences permitted to be drawn from the circumstantial evidence are not sufficient and cannot be employed to overcome the positive testimony. Appellant does not comment on the effect of the deposition in which the driver of the automobile admitted that she knew there were two people on each side of the car.
The injured girl was a trespasser and the trial judge so informed the jury. The rule of law is clear that the standard of care owed to a trespasser is to refrain from committing a willful or wanton injury. This rule, however, gives way to the further proposition that after discovery of the peril to a trespasser, the driver of the automobile is then duty-bound to exercise reasonable care and caution under the circumstances. Absent contributory negligence on the part of the injured person there would appear to be no justifiable excuse for injuring a person in a position of manifest peril if such injury can be reasonably avoided, or as otherwise stated, if such injury can be avoided by the exercise...
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