Direct Transport Co. of Fla. v. Rakaskas

• Decision Date: 09 September 1964
• Docket Number: Nos. 63-682,63-683,s. 63-682
• Citation: 167 So.2d 623
• Parties: DIRECT TRANSPORT COMPANY OF FLORIDA, Inc., a corporation, Direct Equipment Company of Florida, a corporation, Fleet Transport Company of Florida, a corporation, Fleet Management Company, a corporation, Clayton L. Wolfe and David Harden Cochran, Appellants, v. Clayton RAKASKAS, Appellee.
• Court: Florida District Court of Appeals

Page 623

167 So.2d 623

DIRECT TRANSPORT COMPANY OF FLORIDA, Inc., a corporation, Direct Equipment Company of Florida, a corporation, Fleet Transport Company of Florida, a corporation, Fleet Management Company, a corporation, Clayton L. Wolfe and David Harden Cochran, Appellants, v. Clayton RAKASKAS, Appellee.

Nos. 63-682, 63-683.

District Court of Appeal of Florida, Third District.

Sept. 9, 1964.

Rehearing Denied Oct. 14, 1964.

Ross, Reinhardt & Goodman, Richard M. Gale, Miami, for appellants.

Dean, Adams & Fischer, Miami, for appellee.

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

BARKDULL, Chief Judge.

By these appeals, the correctness of a final judgment rendered upon a jury verdict in a personal injury action is brought on for review. With one exception, which will be hereinafter noted, at this juncture of this cause all reasonable inferences drawn from the evidence are to be in favor of the jury's verdict. See: Prince Michael Corp. v. Zucker, Fla.App.1962, 147 So.2d 332; F. W. Woolworth Company v. Stevens, Fla.App.1963, 154 So.2d 201.

Examining the record in light of this principle, it appears that the plaintiff was driving a three-wheeled motorcycle in an easterly direction along Griffin Road in Broward County, following a tractor-trailer rig being driven by the appellant, Cochran, and which was owned or controllled by the other appellants. That, when the two vehicles came into proximity to each other they were both going in the same direction, in the right-hand lane of a macadam road having a width of 24 feet. That, they were proceeding aling Griffin Road within the speed limit, at approximately 25 miles per hour, when they approached a gradual turn to the left in the road, at which point Bryan Road enters Griffin Road from the right (or south). That, as they got to the turn, the tractor-trailer rig drifted over the center of the road [to the left] and reduced speed. That, the plaintiff maintained his original lawful speed, stayed on the right-hand side of the pavement and [because of the reduction in speed of the tractor-trailer rig] the rig drew back alongside the plaintiff until the latter was adjacent to what is commonly called the fifth wheel [or where the tractor and trailer connect], at which time the tractor-trailer made a sudden right turn into Bryan Road without any signals, cutting off the travel of the plaintiff and resulting in the accident and serious injury involved. The driver, Cochran, admitted that at no time was he aware that the plaintiff and the motorcycle were in his proximity until the time of the impact.

The appellants have preserved the following points for review, which they urge as error: (1) Denial by the trial court of their motion for a directed verdict, contending that the appellee's passing on the right constituted contributory negligence as a matter of law, in view of the provisions of § 317.27, Fla.Stat., F.S.A. (2) Failure of the trial judge to advise the jury, in his opening remarks, that not only were there issues as to the negligence of the defendants but there was an issue as to the contributory negligence of the plaintiff. (3) Refusing to give a requested instruction on § 317.27, Fla.Stat., F.S.A. (4) Permitting the plaintiff to call an alleged managing agent of the corporate defendants as an adverse witness, when at the time of the trial he was no longer employed by said defendants. (5) Denying the motion for new trial which urged that the verdict was excessive or computed contrary to the court's instructions.

In determining whether or not the trial court committed error in refusing to direct a verdict, all reasonable inferences to be drawn from the evidence will be drawn in favor of the party moved against. See: Seaboard Air Line Railroad Company v. Branham, Fla.App.1958, 99 So.2d 621; Mellet v. Henry, Fla.App.1959, 108 So.2d 69. In view of the evidence that the plaintiff's motorcycle had never left the pavement [which will be hereinafter discussed] prior to the tractor-trailer rig turning to the right, we find no error in the failure of the trial judge to rule as a matter of law that the plaintiff was guilty of contributory negligence because of the provision of § 317.27, Fla.Stat., F.S.A. See, also: Hiatt v. Trucking, Inc., 122 Ind.App. 411, 103 N.E.2d 915; Menard v. Blanchard, 117 Vt. 384, 92 A.2d 616; Kleckner v. Great American Indemnity Co., 257 Wis. 574, 44 N.W.2d 560. Although the trial judge refused to discuss the defense of contributory negligence in his remarks to the jury while outlining the issues [and possibly it would have been better procedure for him to have done so], same was mentioned by certain of defense counsel in their opening arguments and was adequately charged; and we do not find the trial judge abused his discretion in failing to discuss this defensive issue in the opening remarks. Therefore, no error is made to appear in this point.

The record and exhibits before the trial judge at the time he considered the question of whether or not to give an instruction on § 317.27, Fla.Stat., F.S.A., (1959) ¹ has been extensively examined by this court. In determining whether or not the trial judge committed error in this particular, it is necessary to examine the evidence and the theories of the respective parties as to their causes of action and the defense thereto as the record then stood. See: Winfield Packing Co. v. Truitt, 71 Fla. 38, 70 So. 775; Crosby v. Stubblebine, Fla.App.1962, 142 So.2d 358. Therefore, we must determine if the evidence then before the trial court was susceptible to two views, to wit: (1) that the tractor-trailer rig was at all times in the right lane of traffic, proceeding in an easterly direction, and had not drifted on to the left lane or wrong side of the road; or (2) that the tractor-trailer rig had drifted over to the left lane and was proceeding either/or together/or partially on the wrong side of the road. If the evidence was susceptible to the first porposition, then the charge should have been given, and it left to the trier of the fact to determine which version of the events surrounding the accident were correct. However, the evidence before the trial judge at this time was not so susceptible, in view of the fact that at all times all witnesses concurred that the plaintiff's three-wheeled motorcycle was on the pavement up until the time the tractor-trailer rig commenced its turn. The only logical view of the evidence, in light of this particular circumstance, was that it was physically impossible for the truck to have remained entirely on the right side of the 24' wide road because of its 8'1"'' width and because of the width of the three-wheeled motorcycle, which was 4'1"' '. Therefore, the tractor-trailer rig must have drifted across the imaginary center line and on to the left side of the road. Therefore, in view of the undisputed physical evidence before the trial judge, we find no error in failing to give the charge requested on § 317.27, Fla.Stat., F.S.A. In passing, it is pointed out that if in fact a charge had been given under this section, if would have been incumbent upon the trial judge [if requested] to grant a charge on § 317.28, Fla.Stat., F.S.A. (1959). ²

The general rule appears to be that in calling an adverse witness the question of whether or not he is, in fact, an adverse witness is determined as of his affiliation with the adverse party on the date of the trial. See: Bituminous Casualty Corp. v. City of Harrisburg, 315 Ill.App. 243, 42 N.E.2d 971; Snelling State Bank v. Clasen, 132 Minn. 404, 157 N.W. 643, 6 A.L.R. 1663; Broste v Farmers Union Co-Operative Elevator Co., N.D.1955, 71 N.W.2d 55; 58 Am.Jur., Witnesses, § 560. This should not be a hard and fast rule, but should be a rule to be applied in the discretion of a trial judge in light of the facts brough to his attention at the time of the trial. The witness called by the plaintiff was a dispatcher for the appellants at the time of the accident; he visited the scene of the accident; he was interrogated as an expert in the operation of tractor-trailer rigs; and we find no error in the trial judge permitting him to be called as an adverse witness in the particular circumstances of this case. Even if the trial judge had committed error in permitting him to be called as an adverse witness, his testimony was merely...