Ellison v. Cribb
| Decision Date | 17 October 1972 |
| Docket Number | No. Q--331,Q--331 |
| Parties | Ralph J. ELLISON, individually and Port Carriers, Inc., a corporation, Appellants, v. Gurney A. CRIBB, Jr., Appellee. |
| Court | Florida District Court of Appeals |
C. T. Boyd, Jr., of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellants.
William C. Davis, and Ray L. Wilson, Jacksonville, for appellee.
Defendants have appealed a final judgment awarding damages to plaintiff for injuries sustained as a result of the negligent operation of defendants' motor vehicle. Appellants contend that the trial court erred in denying their motion for a directed verdict made at the conclusion of the evidence as well as their motion for a new trial.
By his complaint plaintiff alleged that defendants so negligently operated their motor vehicle as to cause it to collide with the motor vehicle driven by plaintiff, resulting in severe injuries for which damages were claimed. Defendants interposed the defenses of general denial and contributory negligence.
The undisputed facts reveal that at about eleven o'clock in the nighttime appellant Ellison was operating a 54-foot-long tractor-trailer rig owned by appellant, Port Carriers, Inc., on a two-lane 22-foot-wide public road in Duval County. Appellant was proceeding northward and upon reaching a point where the road intersects a driveway into an industrial plant, appellant slowed his tractor to a speed of about five miles per hour and turned to the left and across the road preparatory to entering the driveway. Appellee was driving his motorcycle southward on the road without a headlight and, in an apparent attempt to avoid striking the vehicle driven by appellant, applied the brakes of his motorcycle causing it to skid a distance of approximately 105 feet before colliding with appellants' vehicle. Appellant-driver testified that he did not see appellee as he approached from the north on his motorcycle and was not aware of his presence until he heard the noise caused by the impact of the motorcycle against the wheel of the tractor. As a result of the collision, appellee was severely injured.
It is appellants' position that the proof fails to establish any negligence on their part and that their motor vehicle was being operated in a careful, prudent, and lawful manner as it approached the driveway into which it attempted to turn. Appellants urge that, since appellee was operating his motorcycle without a headlight or other illumination as required by statute, 1 he was prima facie guilty of negligence which proximately contributed to his injuries and is therefore precluded from recovery. 2
Appellee was so severely injured that at no time was he able to recall the facts immediately preceding the collision. The record is silent as to the speed appellee was traveling immediately prior to the accident, although some estimate of speed may be inferred from the length of skid marks caused by appellee's motorcycle in his attempt to stop or avoid colliding with the tractor of appellants. The evidence construed in a light most favorable to appellee indicates that the point where the road intersects the driveway leading into the industrial plant where the collision occurred was sufficiently lighted as to enable a person to see a distance of from 250 to 300 feet in each direction. The illumination at the intersection was created by the blinker caution light installed at that point together with lights from the adjacent parking lot leading into the plant and from the administration building located on the opposite side of the road. It is appellee's position that even though he was presumptively negligent by operating his motorcycle in the nighttime without a proper headlight as required by law, such negligence was not the proximate cause of the collision. He argues that the intersection where appellant attempted to turn across the road in front of him was so well lighted that if appellant had been exercising due care and keeping a proper lookout ahead, he would have seen appellee approaching from the opposite direction in the southbound lane of the road even though no headlight was burning on his motorcycle. He urges that appellant was therefore negligent in turning in front of him under such circumstances that the collision could not be avoided. Appellee insists that whether he was guilty of contributory negligence to the extent of barring his recovery was a question properly submitted to and resolved by the jury and that to have granted appellants' motion for a directed verdict would have constituted error. With this contention we are forced to agree.
If the area around the intersection where the accident occurred was as well illuminated as appellee's witnesses testified it was, it fell within the province of the jury to decide whether appellant, in the exercise of reasonable care, did see or should have seen appellee approaching from the north on his motorcycle and should therefore have refrained from turning left across the road in front of appellee under circumstances which made the collision inevitable. It was likewise within the jury's province to decide whether appellee's negligence in operating his vehicle without proper lighting or at an excessive speed under conditions then existing proximately caused or contributed to the collision from which he suffered damages. 3
Appellants' next point on appeal raises a perplexing and most delicate problem. The issue presented for our decision is whether on the record before us it must be held that the conduct of one of the jurors was such as to require that the verdict and judgment be set aside and a new trial granted.
During the voir dire examination of the jury by counsel for the parties, appellants' attorney asked the prospective juror, Ninno, whether any member of his family had ever been involved in an automobile accident, to which inquiry the juror responded in the negative. After the jury was selected, sworn and retired to its room for the purpose of organizing, juror Ninno was named as foreman. After the verdict was rendered, appellants' attorney served notice of his intention to interview three of the jurors who served on the trial jury pursuant to the provisions of Canon 23 of ethics governing attorneys as it existed on October 11, 1971. A certified copy of a death certificate issued by the Florida Department of Health and Rehabilitative Services was introduced in evidence and established that foreman Ninno's daughter died from injuries received in an automobile accident which occurred some 2 1/2 years prior to the trial of the case sub judice.
It is appellants' position that the failure of the juror Ninno to disclose matters personal to him in response to questions asked him on his voir dire examination deprived the court and counsel for the appellants of the opportunity to weigh his qualifications as a juror and make a determination as to whether he should be relieved from further service, either for cause or by peremptory challenge. Appellants contend, and...
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