Dupree v. Pitts
| Decision Date | 14 January 1964 |
| Docket Number | No. 63-395,63-395 |
| Citation | 159 So.2d 904 |
| Parties | Homer DUPREE, Appellant, v. John Robert PITTS et al., Appellees. |
| Court | Florida District Court of Appeals |
Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellant.
Nichols, Gaither, Beckham, Colson & Spence and Alan R. Schwartz, Miami, for appellees.
Before BARKDULL, C. J., and CARROLL and HENDRY, JJ.
The appellant was the defendant in an action for damages brought against him by John Robert Pitts, a minor, by his father and next friend, John L. Pitts, and John L Pitts, individually, the plaintiffs. The complaint, in substance, alleged that the defendant so negligently and carelessly operated his automobile as to cause it to seriously injure the plaintiff, John Robert Pitts, a four year old pedestrian. The defendant denied that he was negligent.
The evidence tended to show that the defendant was operating his 1954 Buick sedan northward at about 10:00 A.M., in a residential area on S.W. 116th Avenue. A station wagon was parked about two feet off the edge of the parkway to his right facing southward. As the defendant approached, John Robert Pitts, a four year old boy emerged from behind the car, and ran out in a northwesterly direction across the street. The defendant applied his brakes and turned to the left, but did not stop in time, and struck the little boy at a point slightly behind the right front fender of his car. As a result of the accident, the minor plaintiff suffered severe personal injuries.
The defendant contended that he did not observe the child until the front of his car was even with the front of the station wagon, that he immediately swerved to the left and applied his brakes at a point opposite the center of the station wagon, and that he came to a complete stop within a distance of only slightly more than eight feet after applying his brakes, but could not avoid the accident.
On the other hand, it was undisputed that the skid marks on the road, resulting from the defendant's application of his brakes, measured twenty-two feet and two inches from the left front wheel and twenty-seven feet and one inch from his right rear wheel. A verdict was returned by a jury in favor of the defendant.
Upon motion by the plaintiffs, the trial judge granted the plaintiffs a new trial. The judge's order for new trial stated that the court erred in giving defendant's requested instruction relative to the sudden emergency doctrine, it being the court's opinion that the rule of law was not applicable under the facts in the case, and that the instruction was prejudicial to the plaintiffs' case. The defendant's appeal is from the order granting a new trial.
The only questions to be considered by this court are those involved in the order granting a new trial. Our consideration of the questions will be in the light of the well-established doctrine that the trial courts are allowed a very broad and liberal discretion in granting a new trial; that there is a presumption of correctness in favor of an order by the trial judge granting a new trial; and that a strong showing that there was a clear abuse of discretion is required to reverse such an order. 1
The basis of the sudden emergency doctrine is well set forth in Blashfield, Cyc. of Automobile Law and Practice, Sec. 668, pp. 538-545 in which it is stated:
'When one is confronted with a sudden peril requiring...
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Mansell v. Eidge
...v. Brew, supra; Gibson v. Frierson, Fla.App.1963, 159 So.2d 117; Rosenfeld v. Glickstein, Fla.App.1964, 159 So.2d 670; Dupree v. Pitts, Fla.App.1964, 159 So.2d 904; General Hospital of Greater Miami, Inc. v. Gager, Fla.App.1964, 160 So.2d 749; Park v. Belford Trucking Co., Fla.App.1964, 165......
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Alterman Transport Lines, Inc. v. McCahon, 64-216
...would be in accordance with the applicable principles of law. See: Klepper v. Breslin, Fla.App.,1955, 83 So.2d 587; Dupree v. Pitts, Fla.App.,App.1964, 159 So.2d 904; 23 Fla.App., Jur., Negligence, § 81. Therefore, the evidence before the trial judge at the time of the consideration of the ......
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Ellwood v. Peters
...recited in Midstate Hauling Company v. Fowler, 176 So.2d 87 (Fla.1965), Nabelski v. Turner, 173 So.2d 729 (Fla.App.1965), Dupree v. Pitts, 159 So.2d 904 (Fla.App.1964), and Klepper v. Breslin, 83 So.2d 587 (Fla.1955), reveal that in each case the defendant was driving with due care when pre......
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State, Dept. of Transp. v. Manning, 73--452
...which is not of his own making, he is not held to the same degree of prudence which might otherwise be expected. Dupree v. Pitts, Fla.App.3rd, 1964, 159 So.2d 904. The jury could have and apparently did conclude that the plaintiff when faced with the sudden emergency of an unusual drop off ......