Dabney v. Yapa

• Decision Date: 31 May 1966
• Docket Number: Nos. 65--497,65--498,s. 65--497
• Citation: 187 So.2d 381
• Parties: Ruth Breneman DABNEY, as guardian of Charles W. Dabney, Jr., a minor, et al., Appellants, v. Adam YAPA, trading and doing business as Adams Garage, et al., Appellees. Ruth Breneman DABNEY, as guardian of Charles W. Dabney, Jr., a minor, et al., Appellants, v. E. D. ROGERS and M. M. Rogers, his wife, et al., Appellees.
• Court: Florida District Court of Appeals

Page 381

187 So.2d 381

Ruth Breneman DABNEY, as guardian of Charles W. Dabney, Jr., a minor, et al., Appellants, v. Adam YAPA, trading and doing business as Adams Garage, et al., Appellees.

Ruth Breneman DABNEY, as guardian of Charles W. Dabney, Jr., a minor, et al., Appellants, v. E. D. ROGERS and M. M. Rogers, his wife, et al., Appellees.

Nos. 65--497, 65--498.

District Court of Appeal of Florida, Third District.

May 31, 1966.

Rehearing Denied June 28, 1966.

Dean & Adams, Miami, for appellants.

John G. Poole, Jr., Miami, for appellees, Yapa and Foster.

Blackwell, Walker & Gray and James E. Tribble, Miami, for appellee, Rogers.

Before HENDRY, C.J., and PEARSON and BARKDULL, JJ.

PEARSON, Judge.

These appeals are from separate final judgments but since they arose out of the same injury, they were consolidated for argument and disposition. The appellants (plaintiffs in the trial court) are Ruth Breneman Dabney, as guardian of Charles W. Dabney, Jr., a minor, and Charles W. Dabney, Sr., the minor's father. The appellees (defendants in the trial court) are Adam Yapa, doing business as Adams Garage; Richard W. Foster; E. D. Rogers and M. M. Rogers, his wife.

Adam Yapa (hereinafter owner) was the owner and Richard W. Foster (hereinafter driver) was the driver of a truck which was involved in a collision with a bicycle ridden by Charles W. Dabney, Jr. The Rogers (hereinafter landowner) were the owners and leasors of the premises adjacent to which the accident occurred. An additional defendant, Gables Auto Parts, Inc., was the lessee of the premises and the operator of a business conducted on the premises adjacent to which the collision occurred. A judgment, based upon a jury verdict, was recovered against Gables Auto Parts, Inc. The judgment against Gables Auto Parts, Inc. is not a subject of these appeals.

The appellants suffered a jury verdict for the owner, Yapa, and the driver, Foster, and the appellants suffered a directed verdict and judgment thereon for the landowners, Rogers. These appeals are from the respective judgments for the defendants Yapa, Foster and Rogers.

The landowners purchased, as an investment, a business lot which contained a building on the rear portion and a paved portion between the building and the street. The paved portion had two driveways or exits across the sidewalk to the street. One of these driveways was so located that, if used as an exit from the parking lot, the driver of the exiting vehicle could not see down the sidewalk because of an adjacent building set on the property line. The landowners leased the building on the rear portion of the lot to Gables Auto Parts, Inc. Under this lease, the landowners agreed to keep the parking area in repair. The parking area contained no signs designating ingress and agress. Later, there was erected, by persons not designated, a sign stating: 'Customer parking, Gables Auto Parts, Inc., only.'

The driver entered the parking area and made a purchase at Gables Auto Parts. In making his exit over the sidewalk at the partially blind driveway, he stopped and then rolled out onto the sidewalk. The minor plaintiff, who was riding a bicycle, struck the side of the truck. He was riding his bicycle on the sidewalk because a school policewoman had told him to do so.

On the appeal from the judgment based on the jury verdict for the defendant-owner, Yapa, and his driver, Foster, the appellant urges error upon:

(1) the court's allowance into evidence of an ordinance of Metropolitan Dade County which prohibits a person from riding a bicycle on a sidewalk within a business district;

(2) the scope of cross-examination allowed the defendant in the examination of the minor plaintiff;

(3) the latitude allowed defendants' counsel during final argument;

(4) instructions given by the court in the charge to the jury.

The gist of appellants' point directed to the introduction into evidence of the ordinance is that it was irrelevant because the jury could not have found that the violation of the ordinance was the proximate cause of the accident. It is axiomatic that under Florida law the question of proximate cause is for the jury. Fendrick v. Faeges, Fla.App.1960, 117 So.2d 858; Isenberg v. Ortona Park Recreational Center, Inc., Fla.App.1964, 160 So.2d 132. We hold that the ordinance could have been found by the jury to have been relevant to the injury and that as such, it was admissible into evidence. Cf., Tamiami Gun Shop v. Klein, Fla.App.1959, 109 So.2d 189; Fla.1959, 116 So.2d 421; Richardson v. Fountain, Fla.App.1963, 154 So.2d 709.

Appellants' second point, directed to the scope of cross-examination, does not present reversible error in view of the latitude allowed upon cross-examination. The determination of the proper limits of cross-examination is a matter where the trial court exercises its discretion and such a determination will not be reversed by an appellate court except upon a clear showing of an abuse of discretion and prejudice to the complaining party. H. I. Holding Company v. Dade County, Fla.App.1961, 129 So.2d 693; Seminole Shell Co. v. Clearwater Flying Co., Fla.App.1963, 156 So.2d 543. Neither of these circumstances appear in this record.

We have reviewed the record in the light of appellants' objections to the conduct of closing argument and their objection to the jury instructions and find that reversible error is not presented.

We now turn to appellants' points which are directed to the final judgment for the landowner, Rogers. This judgment was...