Darr v. Aglin

Decision Date19 June 1973
Docket NumberNo. R--394,R--394
Citation279 So.2d 62
PartiesKenneth Denver DARR, Appellant, v. Johnnie AGLIN et al., Appellees.
CourtFlorida District Court of Appeals

W. Spencer Mitchem, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellant.

Artice L. McGraw, of Phillips, Williams, McGraw & Cetti, and William H. Anderson, Pensacola, for appellees.

RAWLS, Judge.

This is a negligence action arising out of a collision on Interstate 10 between a truck owned and operated by appellant Kenneth Darr and a front-end loader owned by Pensacola Concrete Company and driven by appellee Johnnie Aglin. 1 A complaint was filed by Aglin and Pensacola Concrete Company against Darr and the lessor of his truck, Pan American Van Lines. Defendants denied any negligence in their answer and filed a counterclaim alleging negligence on the part of appellee Aglin. After all evidence was adduced, the trial judge denied motions for directed verdict made by both parties and submitted the issues to a jury. The jury's verdict found for defendant-appellant Kenneth Darr as to the claims of Mr. and Mrs. Aglin and Pensacola Concrete Company and in favor of appellant Darr on his counterclaim against Aglin and Pensacola Concrete Co. in the sum of $6,415.86. Pursuant to motions for judgment in accordance with motions for directed verdict and for new trial made respectively by Aglin and Pensacola Concrete, the trial judge granted their motions for directed verdict; set aside the jury's verdict and judgment and denied appellee's motion for new trial on the remaining issues. Appellant Darr now appeals the trial court's post trial judgment, and Aglin and Pensacola Concrete Co. cross assign as error the trial court's denial of their motion.

The elementary test for a directed verdict is that the party who so moves admits not only the facts proved by the evidence adduced, but also admits every conclusion favorable to the adverse party that the jury might fairly and reasonably infer from the evidence. 2

In the case at bar, the evidence construed in a light most favorable to the jury's verdict does not support the post trial judgment entered by the trial judge. Appellee Aglin voluntarily drove his slow moving vehicle on this arterial highway occupying a traffic lane with a lawful minimum speed of forty miles per hour. According to Aglin's testimony, he was traveling at the rate of twenty-five miles per hour at the time of the accident and had no warning flags or signs on his vehicle that would alert a following motorist as to his 'tortoise' pace. Appellant Darr testified that he was operating his tractor-trailer unit, weighing some 58,000 pounds, at a speed of 50 to 60 miles per hour (within the lawful speed limit), and as he approached a grade, he saw the outline of the top of the front-end loader approximately a thousand feet ahead and assumed that the front-end loader was a piece of machinery being transported on a low-boy. After topping the hill, appellant Darr first realized that the front-end loader was being driven by appellee Aglin at a slow rate of speed in the right traveling lane of the interstate highway and that he had to take immediate action to avoid a collision. As soon as he realized that he was gaining on the front-end loader, appellant Darr started applying brakes and slowing down. Darr was fearful that a full emergency stop would result in jackknifing the trailer and causing a chain reaction collision of vehicles following his unit in excess of the 40 miles per hour minimum speed, or that if an emergency stop was successful without jackknifing the same result would occur. In his own words, Darr stated:

'I didn't have too much time to decide what was the right thing to do. I know I had to do something. I had traffic on my rear bumper. I had traffic on my left side--

'I slowed down all I figured I could without causing another accident . . .. That car that was right on my rear end . . .. Close enough behind me, sir, that when the impact of this accident happened they ran two other cars together right on the rear end of this trailer.'

Appellee Aglin insists that the...

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4 cases
  • Torres v. Sell, 85-2465
    • United States
    • Florida District Court of Appeals
    • February 17, 1987
    ...of fact ordinarily to be decided by the jury. Scott v. City of Opa Locka, 311 So.2d 825, 827 (Fla. 3d DCA 1975); Darr v. Aglin, 279 So.2d 62, 64 (Fla. 1st DCA 1973); Young v. Taylor, 212 So.2d 25 (Fla. 2d DCA 1968); see also Schubowsky v. Hearn Food Store, Inc., 261 So.2d 162, 162 (Fla.1972......
  • Tozier v. Jarvis, 84-298
    • United States
    • Florida District Court of Appeals
    • May 15, 1985
    ...overcome as a defense against the rear-ending plaintiff. See also Catir v. Roberson, 423 So.2d 454 (Fla. 1st DCA 1982); Darr v. Aglin, 279 So.2d 62 (Fla. 1st DCA 1973). Although numerous cases have held the presumption to be rebutted by appropriate testimony, another line of cases has defin......
  • Amoedo v. Socarras, 74--773
    • United States
    • Florida District Court of Appeals
    • April 22, 1975
    ...The following facts appear in this record and must be taken as admitted upon defendant's motion for a directed verdict. See Darr v. Aglin, Fla.App.1973, 279 So.2d 62. The note sued upon was made and delivered for good consideration on April 26, 1965. The defendant guaranteed the note as a c......
  • Levine v. Frank, 74-552
    • United States
    • Florida District Court of Appeals
    • April 8, 1975
    ...and every conclusion favorable to the non-moving party that the jury might fairly and reasonably infer from the evidence. Darr v. Aglin, Fla.App.1973, 279 So.2d 62. The evidence must be considered in a light most favorable to the nonmoving party. Seigel v. Mt. Sinai Hospital of Greater Miam......

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