Davis v. Goodall

• Decision Date: 08 September 1967
• Docket Number: No. 7172,7172
• Citation: 202 So.2d 623
• Parties: Warren C. DAVIS and Francis Edwards Davis, Appellants, v. Shirley S. GOODALL and Ross J. Goodall, Appellees.
• Court: Florida District Court of Appeals

Page 623

202 So.2d 623

Warren C. DAVIS and Francis Edwards Davis, Appellants, v. Shirley S. GOODALL and Ross J. Goodall, Appellees.

No. 7172.

District Court of Appeal of Florida, Second District.

Sept. 8, 1967.

Rehearing Denied Oct. 10, 1967.

Shackleford, Farrior, Stallings & Evans, Tampa, for appellants.

Nichols, Gaither, Beckham, Colson, Spence & Hicks, and Podhurst & Orseck, Miami, for appellees.

WILLIS, ROBERT E., Associate Judge.

The Defendants in a negligence action appeal from an order of the trial judge granting a new trial.

The Plaintiff, Shirley S. Goodall was driving her 1956 Ford automobile north on Howard Avenue in Tampa at approximately 9:30 p.m. on a rainy night. As she approached the intersection with Watrous Avenue, which was controlled by a traffic light, she applied her brakes and was thereafter struck in the rear by Defendants' 1961 Volkswagen which was being driven by Mrs. Francis Davis and which skidded or slid on the wet road while attempting to stop.

The color of the traffic light at the time of the collision is as stated by the trial judge, 'A disputed question of fact.' The Defendant was approximately five car lengths behind the Plaintiff's car just prior to the collision and the Defendant maintains that there is evidence to justify a verdict that the Plaintiff suddenly stopped her car on a green light on a rainy night and that she was therefore, guilty of contributory negligence.

In the order granting the new trial, the trial judge held:

"That the Court erred in denying plaintiffs Motion for Directed Verdict on the issue of contributory negligence at the close of all of the evidence.

"That the Court erred in instructing the jury on the issue of contributory negligence.'

'The facts in the case showed that the plaintiff was either stopped or coming to a stop on either a green, yellow or red light. The defendant struck the plaintiff in the rear. Accepting every bit of defendant's testimony as true, the Court does not find there was any evidence of negligence on the part of the plaintiff and that the cause should have been submitted to the jury only on the issue of negligence of the defendant and not on the issue of any contributory negligence of the plaintiff. It is therefore.

'ORDERED that the motion for a new trial be, and the same is hereby granted. Cloud v. Fallis, Fla.1959, 110 So.2d 669.'

Where conflicting testimony raises doubt as to whether there was contributory negligence on the part of the Plaintiff, the...