Cunningham v. Romano, No. 72--607

CourtCourt of Appeal of Florida (US)
Writing for the CourtPEARSON; PER CURIAM
Citation278 So.2d 631
PartiesScott Wayne CUNNINGHAM, a minor, by and through his mother and next friend, Jill McGee and Jill McGee, Individually, Appellants, v. Frank P. ROMANO and Care Care, Inc., an Illinois corporation, Appellees.
Decision Date10 April 1973
Docket NumberNo. 72--607

Page 631

278 So.2d 631
Scott Wayne CUNNINGHAM, a minor, by and through his mother and next friend, Jill McGee and Jill McGee, Individually, Appellants,
v.
Frank P. ROMANO and Care Care, Inc., an Illinois corporation, Appellees.
No. 72--607.
District Court of Appeal of Florida, Third District.
April 10, 1973.
On Rehearing June 5, 1973.

Horton, Schwartz & Perse, Miami, Cohen & Cohen, for appellants.

Fowler, White, Humkey, Burnett, Hurley & Banick and A. Blackwell Stieglitz, Miami, for appellees.

Before PEARSON, HENDRY and HAVERFIELD, JJ.

PEARSON, Judge.

The appellants are a minor and his mother. They were both injured as a result of an intersectional collision. The appellant, Jill McGee, was driving and the child, Scott Wayne Cunningham, was an infant passenger. The appellee, Frank P. Romano, was the driver and Car Care, Inc. was the owner of the second car. The appellants were the plaintiffs in the trial court and they appeal a final judgment and an order granting new trial. The order entered upon the post-trial motions prescribed as follows: (1) it granted defendants' motions for directed verdict made at the conclusion of the trial, and (2) it

Page 632

granted defendants' motion for a new trial in event the judgment based upon directed verdict should be reversed upon appeal.

On May 6, 1971, the date of the collision, Frank P. Romano was driving northbound on N.W. 22nd Avenue approaching N.W. 103rd Street in Dade County, Florida, where he intended to make a right tern. There were three northbound and three southbound lanes. Romano had entered N.W. 22nd Avenue about ten blocks from the scene of the accident. He drove in the middle northbound lane until he arvived at a point approximately three blocks from the scene of the accident which occurred at the intersection of N.W. 22nd Avenue and N.W. 102nd Street. Traffic appeared to get more congested and in order to escape this congestion, he moved into the right lane. The right lane was clear ahead to N.W. 103rd Street and Romano continued northbound at about thirty-five miles per hour. As he approached the intersection of N.W. 22nd Avenue and N.W. 102nd Street, Romano noted the traffic had stopped in the lanes to his left. He released his accelerator and was continuing toward the intersection with N.W. 103rd Street when the accident occurred.

As Romano approached N.W. 102nd Street, he noted a trailer truck stopped just before the intersection in the middle northbound lane. The truck blocked Romano's filed of vision to his left into the southbound lanes. Jill McGee was proceeding southbound on N.W. 22nd Avenue intending to turn left at the intersection at N.W. 102nd Street. She stopped on N.W. 22nd Avenue and N.W. 102nd Street facing southbound and waited to make a left turn. The traffic in the northbound left and center lanes had stopped leaving a pathway through the intersection. The driver of an automobile in the left lane waved her on as did the truck driver stopped in the center lane. She proceeded through these lanes and into the right lane and saw Romano immediately before impact. Romano did not see the plaintiff's vehicle before a moment preceding impact. There was testimony that at the time of the impact, the Romano vehicle was going between thirty and thirty-five miles per hour and laid down fourteen feet of skid marks.

At the conclusion of the trial, the court property instructed the jury on the law of negligence including an instruction ot the effect that any negligence of appellant would not be imputed to her infant child. After deliberating for slightly more than an hour the jury reported the following verdict. 'We, the jury, find for the defendants guilty with negligence on both sides.' Thereafter, a colloquy between court and counsel ensued during which counsel for both sides stated that the jury should be recharged.

After retiring for the second time the jury reported the following verdicts:

'We, the jury, find for the plaintiff, Scott Wayne Cunningham, and assess...

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10 practice notes
  • Ligman v. Tardiff, No. 84-127
    • United States
    • Court of Appeal of Florida (US)
    • March 19, 1985
    ...law. Petroleum Carrier Corp. v. Gates, 330 So.2d 751 (Fla. 1st DCA 1976); Kilburn v. Davenport, 286 So.2d at 243; Cunningham v. Romano, 278 So.2d 631 (Fla. 3d DCA), cert. denied, 285 So.2d 19 Directed verdicts should not be entered if the evidence is conflicting and permits different, reaso......
  • Peninsular Life Ins. Co. v. Hanratty, No. 72--1480
    • United States
    • Court of Appeal of Florida (US)
    • August 20, 1973
    ...Therefore, the order granting a new trial was correct. See Cloud v. Fallis, Fla.1959, 110 So.2d 669; Cunningham v. Romano, Fla.App.1973, 278 So.2d 631; Pittman v. Smith, Fla.App.1971, 252 So.2d The judgment notwithstanding the verdict is reversed. The order granting a new trial is affirmed.......
  • St. Martin v. Allstate Ins. Co., No. 78-763
    • United States
    • Florida District Court of Appeals
    • February 13, 1979
    ...proximate cause of the accident. Proctor & Gamble Distributing Co. v. McGlamery, 341 So.2d 521 (Fla. 3d DCA 1976); Cunningham v. Romano, 278 So.2d 631 (Fla. 3d DCA 1973), cert. denied, 285 So.2d 19 (Fla.1973); Basden v. Lowery, 182 So.2d 265 (Fla. 3d DCA 1966). Since the case is governed by......
  • Proctor & Gamble Distributing Co. v. McGlamery, No. 75--1924
    • United States
    • Florida District Court of Appeals
    • June 8, 1976
    ...by the defendants, which raised the question of comparative negligence. The court also overlooked its decision in Cunningham v. Romano, 278 So.2d 631 (Fla.3rd DCA 1973). Following review of the Cunningham decision, it appears to be analogous to the instant case and, therefore, we reverse th......
  • Request a trial to view additional results
10 cases
  • Ligman v. Tardiff, No. 84-127
    • United States
    • Court of Appeal of Florida (US)
    • March 19, 1985
    ...law. Petroleum Carrier Corp. v. Gates, 330 So.2d 751 (Fla. 1st DCA 1976); Kilburn v. Davenport, 286 So.2d at 243; Cunningham v. Romano, 278 So.2d 631 (Fla. 3d DCA), cert. denied, 285 So.2d 19 Directed verdicts should not be entered if the evidence is conflicting and permits different, reaso......
  • Peninsular Life Ins. Co. v. Hanratty, No. 72--1480
    • United States
    • Court of Appeal of Florida (US)
    • August 20, 1973
    ...Therefore, the order granting a new trial was correct. See Cloud v. Fallis, Fla.1959, 110 So.2d 669; Cunningham v. Romano, Fla.App.1973, 278 So.2d 631; Pittman v. Smith, Fla.App.1971, 252 So.2d The judgment notwithstanding the verdict is reversed. The order granting a new trial is affirmed.......
  • St. Martin v. Allstate Ins. Co., No. 78-763
    • United States
    • Florida District Court of Appeals
    • February 13, 1979
    ...proximate cause of the accident. Proctor & Gamble Distributing Co. v. McGlamery, 341 So.2d 521 (Fla. 3d DCA 1976); Cunningham v. Romano, 278 So.2d 631 (Fla. 3d DCA 1973), cert. denied, 285 So.2d 19 (Fla.1973); Basden v. Lowery, 182 So.2d 265 (Fla. 3d DCA 1966). Since the case is governed by......
  • Proctor & Gamble Distributing Co. v. McGlamery, No. 75--1924
    • United States
    • Florida District Court of Appeals
    • June 8, 1976
    ...by the defendants, which raised the question of comparative negligence. The court also overlooked its decision in Cunningham v. Romano, 278 So.2d 631 (Fla.3rd DCA 1973). Following review of the Cunningham decision, it appears to be analogous to the instant case and, therefore, we reverse th......
  • Request a trial to view additional results

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