Cunningham v. Romano, 72--607

• Decision Date: 10 April 1973
• Docket Number: No. 72--607,72--607
• Citation: 278 So.2d 631
• Parties: 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.
• Court: Florida District Court of Appeals

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 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 his damages in the sum of $25,000, and for the plaintiff, Jill McGee, and assess her damages in the sum of $1,000. So say we all, . . .'.

'We, the jury, find for the defendants guilty. So say we all, . . .'.

At this point, after a motion for mistrial by counsel for the defendants, the trial court entered an order which was later vacated by a subsequent order which provided, in pertinent part, as follows:

'IT IS FURTHER ORDERED AND ADJUDGED that the defendants' Motions for Entry of Judgment in accordance with Motions for Directed Verdict be, and the same are, hereby granted, or in the alternative, should this Order be reversed on appeal, the defendants' Motion for New Trial be, and the same is, hereby granted as it is the finding of this Court that:

'The verdict forms returned by the jury are inconsistent as a matter of law.

'The verdict forms returned by the jury manifest either the misunderstanding or disregard of the Court's instructions with respect to the law applicable in this case.

'The verdicts returned by the jury disclose reasonable grounds upon which to conclude that the jury acted through mistake or other improper cause.

'The verdicts are against the manifest weight of the evidence.'

Then, in accordance with this order granting appellees' motions for directed verdict, the trial court entered the final judgment appealed.

The appeal from the directed verdict turns upon the question of whether as a matter of law there was a proper view of the evidence which could sustain a verdict for the plaintiffs. Bourgeois v. Dade Co., Fla.1957, 99 So.2d 575; Air Travel Associates, Inc. v. Eastern Air Lines, Inc., Fla.App.1973, 273 So.2d 3. We must consider the answer to the governing question for each plaintiff. The passenger is entitled to have his case go to the jury without regard to an issue of the possible contributory negligence of the plaintiff-driver. Thus, the question is whether there is any evidence upon which a jury could reasonably find the defendant-appellee negligent. We hold that the evidence viewed in the light most favorable to the party moved against...