Cobb v. Brew

• Decision Date: 25 July 1963
• Docket Number: No. D-437,D-437
• Citation: 155 So.2d 814
• Parties: Mary D. COBB, Appellant, v. Margaret A. BREW, Appellee.
• Court: Florida District Court of Appeals

Page 814

155 So.2d 814

Mary D. COBB, Appellant, v. Margaret A. BREW, Appellee.

No. D-437.

District Court of Appeal of Florida, First District.

July 25, 1963.

Rehearing Denied Sept. 12, 1963.

Howell, Kirby, Montgomery & Sands, Daytona Beach, for appellant.

William W. Judge and Isham W. Adams, Daytona Beach, for appellee.

RAWLS, Judge.

Defendant (appellant) Mary D. Cobb appeals from an order by the Circuit Court of Volusia County granting a new trial in this negligence action which arose out of an intersection automobile collision.

The plaintiff (appellee) was riding as a passenger in a station wagon owned and operated by John Roberson. ¹ The station wagon was traveling approximately 20-30 miles per hour in an easterly direction as it approached an uncontrolled intersection outside the city limits of Daytona Beach in Volusia County. Roberson was of the opinion that the north-south street was a stop street. Ty Cobb, III, the nineteen year old son of the defendant, while driving in a northerly direction at approximately 30 miles per hour, approached the intersection, and a collision occurred between the two automobiles, from which plaintiff alleged she incurred severe injuries. The lawful speed in the area of the accident was thirty miles per hour. Conflicting testimony was presented as to the action taken by each driver to prevent the occurrence of an accident.

Each party, relying upon certain provisions of Section 317.40, Florida Statutes, F.S.A., claimed liability was established against the other. Plaintiff based her case primarily upon the hypothesis the proofs reflected that the Roberson vehicle, in which she was riding, had pre-empted the intersection, thereupon placing upon Cobb the duty to yield the right-of-way. ² Defendant submits the proofs show that since her vehicle entered the intersection to the right of the plaintiff, that her car had the right-of-way. ³ Therefore, the result in this case depended upon a question of fact which was resolved by the jury in defendant's favor.

The trial judge, in his order granting a new trial, found that: '(1) The verdict of the jury is contrary to and against the manifest weight of the evidence and does not square with right and justice, and there is reasonable ground to conclude that the jury was deceived as to the force and credibility of the evidence and acted through sympathy, passion, prejudice, mistake or other unlawful cause. (2) The Jury misunderstood or ignored the Court's charge that the defenses of contributory negligence did not apply to plaintiff * * *.'

Defendant insists that the facts of this case fall within the scope of the rule laid down in Cloud v. Fallis ⁴ wherein the Supreme Court stated:

'When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, Poindexter v. Seaboard Air Line R. Co., Fla., 56 So.2d 905, Mead v. Bentley, Fla., 61 So.2d 428, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached, Pyms v. Meranda, Fla., 98 So.2d 341.'

We recognize that in accordance with the foregoing sound principle of law the order of a trial judge granting a new trial is entitled to great weight by the reviewing court and should not be lightly overturned. ⁵ However, a new trial should be granted only when substantial rights have been so violated as to make it reasonably clear that a fair trial was not had. ⁶ It is an abuse of discretion to grant a new trial when the verdict finds ample support in the record and no illegal evidence is shown to have gone to the jury and nothing can be accomplished except to have another jury review the cause ⁷ which is the case as reflected by this record. The Supreme Court has consistently held '* * * that such an order may be reviewed on the record for the purpose of ascertaining whether the exercise of judicial discretion implicit in the order has been abused. * * *' ⁸

Although we are reluctant to upset the broad and liberal discretion vested in a trial judge in his granting of a new trial, ⁹ a full and thorough review of this record fails to reveal the essential predicates to support the order. The trial judge in denying defendant's motion for a directed verdict stated the applicable rule when he said: 'Now, Mr. Sands (defendant's attorney), I want to give you all the time you want to present this but you are developing an estensive factual situation that I have no jurisdiction over. [Emphasis supplied.] What you are telling me is strictly a matter for the jury * * *.' There is a dearth of any evidence going toward 'sympathy' or 'prejudice' on the part of the jury and the jury resolved the factual situation....