Delevis v. Troyer, 2679

• Decision Date: 13 June 1962
• Docket Number: No. 2679,2679
• Citation: 142 So.2d 783
• Parties: Gordon L. DELEVIS, and Dora M. Delevis, husband and wife, Appellants, v. Samuel TROYER and John J. Miller, Appellees.
• Court: Florida District Court of Appeals

Page 783

142 So.2d 783

Gordon L. DELEVIS, and Dora M. Delevis, husband and wife, Appellants, v. Samuel TROYER and John J. Miller, Appellees.

No. 2679.

District Court of Appeal of Florida, Second District.

June 13, 1962.

Rehearing Denied July 10, 1962.

Harkavy, Doyle, Feigin, Hasson & Ludacer, Sarasota, for appellants.

Johnson S. Savary, Ft. Myers and Dart, Bell, & Dickinson, Sarasota, for appellees.

MAXWELL, OLIVER C., Associate Judge.

This is an appeal from a summary judgment in favor of defendant appellees in an automobile collision case. The summary judgment was entered upon the pleadings, photographs, interrogatories, answers to requests for admissions, affidavits and depositions. There is considerable conflict in the stories as told by appellants and appellees. The accident occurred on Bahia Vista Street at a point where Herndon Road, a shell or dirt road intersects with Bahia Vista Street to form a T. The Appellants contend that they were driving east on Bahia Vista after dark on March 12, 1960 approaching the intersection of Herndon Road intending to make a left turn on Herndon Road; that at this point there were two yellow lines down the middle of Bahia Vista Street; that the appellant, Gordon L. Delevis flashed his tail lights and slowed down to make his left turn, looked in his rear view mirror to see if anything was approaching and saw nothing; proceeded to make his left turn and was approximately halfway off Bahia Vista when his vehicle was struck on the left rear fender behind the left rear wheel by appellees car which was then in the left or west bound lane of Bahia Vista Traffic. There was no automatic turn indicator on appellants car and he did not give a hand signal for a left turn.

According to appellees' version there was no flashing of tail lights and their car was passing appellants when appellants' car suddenly turned in front of appellees' car. There is considerable conflict in the factual situation as seen by appellants and appellees.

The trial judge entered a summary judgment finding that the appellants' vehicle was not equipped with automatic turn signals and that appellant did not give an arm signal or his intention to turn left as required by F.S. §§ 317.37 and 317.39, F.S.A.; that there was no evidence to show the double yellow lines were visible at night; that appellant knew of the existence of the 'no passing' lines but also knew they were in front of a school which had been abandoned; and that appellant had responsibility of anticipating a person might be approaching from the rear and had the responsibility of giving the proper left turn signal. The Court in essence ruled that the failure to give the left hand signal within the last 100 feet traveled before turning was a violation of Florida Statutes, § 317.37, F.S.A., and that the violation 'is a prima facie case of negligence against the plaintiff and coupled with the findings as expressed in this summary judgment is an act of negligence which will bar the plaintiffs from recovering in this case.' The Court declined to pass on the negligence of the defendant and granted the motion for summary judgment agaisnt the plaintiffs. $The appellants contend (1) that the Court erred because there were issues of disputed facts as to the physical facts surrounding the accident; (2) in disregarding the doctrine of last clear chance; (3) in holding, as a matter of law, that appellants were contributorily negligent to an extent barring them from recovery and (4) in ignoring the duty and obligation of appellee to operate his automobile so as to stop within the range of his vision.

The appellee filed cross-assignments of error charging that the...