Clark v. Sumner

• Citation: 72 So.2d 375
• Parties: CLARK v. SUMNER.
• Decision Date: 07 May 1954
• Court: United States State Supreme Court of Florida

Page 375

72 So.2d 375

CLARK v. SUMNER.

Supreme Court of Florida, Special Division B.

May 7, 1954.

Shackleford, Farrior, Shannon & Stallings, Tampa, for appellant.

Carver & Langston, Lakeland, for appellee.

DREW, Justice.

This case stems from a collision of two automobiles on State Road 39 about six miles north of Plant City, Florida. At the time of the accident the appellee here (hereafter called plaintiff) was driving her automobile on the left side of the center line of the highway and was in the act of passing the truck of appellant (hereafter called defendant), when it suddenly turned to the left for the purpose of entering a dirt road leading off the main highway.

At the close of plaintiff's case and again when all of the evidence of both parties was in, the defendant moved the court to direct a verdict in his favor on the grounds that plaintiff was precluded from recovery as a matter of law by reason of a portion of the provisions of Section 317.30 F.S. 1951, F.S.A., infra. These motions were overruled and the jury returned a verdict for the plaintiff. This appeal is taken from the final judgment entered following the verdict.

Section 317.30, supra, reads as follows:

'(1) No vehicle shall at any time be driven to the left side of the roadway under the following conditions:

'(a) When approaching the crest of a grade or upon a curve in the highway where the driver's view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction;

'(b) When approaching within one hundred feet of or traversing any intersection or railroad grade crossing;

'(c) When the view is obstructed upon approaching within one hundred feet of any bridge, viaduct, or tunnel.

'(d) The foregoing limitations shall not apply upon a one-way roadway.'

The sole question argued on this appeal is whether, by reason of Sub-section 317.30(1)(b), supra, the lower court erred in failing to direct a verdict in favor of the defendant below when the evidence showed without contradiction that plaintiff at the time of the accident was driving on the left side of the highway within 100 feet of an intersection. Solely for the purpose of disposing of this proposition (but concerning which more will be said later), we assume that the location of the accident was an intersection as contemplated by the statute.

To sustain the position of defendant it is essential, first, that the facts of the case show beyond dispute that the statute is applicable, and further that being applicable the statute precludes recovery by a plaintiff in violation thereof under the circumstances here presented. In support of his position defendant cites only Gosma v. Adams, 102 Fla. 305, 135 So. 806, 78 A.L.R. 1193.

The Adams case is not in point. That case involved the application of a city ordinance which provided, "Any vehicle in overtaking another shall pass to the left, but such passage shall not be made at street intersections, except where traffic is controlled; that is, where there is a traffic officer stationed or where there is an automatic signal." Thus the ordinance under certain conditions prohibited a person from passing another vehicle at street intersections.

The statute involved in this case is not only worded differently but has a different effect. In substance the portions here relied upon provide, 'No vehicle shall at any time be driven to the left side of the roadway * * * when approaching within one hundred feet of or traversing any intersection * * *.' (Emphasis supplied.) Under this provision of the statute, a driver is prohibited from changing his line of travel and attempting to drive to the left side of the highway at any point within 100 feet of an intersection, but is not prohibited from continuing to pass a vehicle within 100 feet of an intersection provided that the change in course was made more than 100 feet from the intersection. Lemkie v. Boice, 1951, 329 Mich. 278, 45 N.W.2d 288, 291.

In the Boice case the plaintiff was proceeding southerly on a highway, and when at a point 200-300 feet from an intersection turned his truck to the left side of the highway, passed one car, and kept on the left side of the highway to pass the car of defendant. The defendant attempted to make a left turn, resulting in a collision close to the intersection. A Michigan statute provided in part:

"(b) No vehicle shall at any time be driven to the left side of the highway under the following conditions:

"1. When approaching the crest of a grade or upon a curve in the highway where the driver's view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction;

"2. When approaching within 100 feet of or traversing any intersection or railroad crossing;

"3. When the view is obstructed upon approaching within 100 feet of any bridge, viaduct or tunnel."

The jury returned a verdict for plaintiff. On appeal from the adverse judgment, the defendant contended that the language in the statute 'driven to the left side' means the same as driven on the left side of the highway and therefore the plaintiff was guilty of contributory negligence as a matter of law because at the time of the accident plaintiff was in violation of the statute in that he was driving on the left side of the highway within 100 feet of an intersection.

The Supreme Court of Michigan affirmed the judgment for the plaintiff. The Court said the it agreed with the view of the trial court that, "If the Legislature meant...