Gosma v. Adams

• Decision Date: 30 June 1931
• Citation: 135 So. 806,102 Fla. 305
• Parties: GOSMA v. ADAMS.
• Court: Florida Supreme Court

135 So. 806

102 Fla. 305

GOSMA v. ADAMS.

Florida Supreme Court

June 30, 1931

En Banc.

Error to Circuit Court, Pinellas County; John U. Bird, Judge.

Action by Tom Adams against Albert P. Gosma. Judgment for plaintiff and defendant brings error.

Reversed.

BROWN J., dissenting.

COUNSEL

Wm. G. King and Merle E. Rudy, both of St Petersburg, for plaintiff in error.

Marcus J. Sternberg, of Elgin, Ill., and Lewis C. Russell, of St. Petersburg, for defendant in error.

OPINION

BUFORD C.J.

In this case the defendant in error was plaintiff in the court below, and sued the plaintiff in error, defendant in the court below, for personal injury received in an automobile collision occurring on a certain street in St. Petersburg, Fla., known as Seventh avenue. Seventh avenue runs east and west. Both plaintiff and defendant were traveling west in automobiles. The defendant was in front and the plaintiff in the rear. Twenty-First street intersects Seventh avenue on the south side and runs south. The collision occurred near the middle of Seventh avenue immediately north of the place where Twenty-First street comes to or intersects Seventh avenue on the south side.

The plaintiff was in the act of passing the defendant coming from the rear when the defendant turned his car toward Twenty-First street for the purpose of entering Twenty-First street and the left front of defendant's car came in contact with the right forward quarter of plaintiff's car, the impact on plaintiff's car being received about the right front wheel. Plaintiff's car was turned over, and he was seriously injured. The defendant pleaded contributory negligence, and, amongst other things, pleaded:

'That the plaintiff, having overtaken the defendant, negligently, carelessly, recklessly and unlawfully attempted to pass defendant's automobile at an intersection of streets contrary to the Laws of the State of Florida and in violation of an ordinance of (4) the City of St. Petersburg, the said intersection where said collision occurred not being an intersection where traffic is controlled.'

The section of the ordinance of the city of St. Petersburg referred to was introduced in evidence, and read as follows:

'Any vehicle in overtaking another shall pass to the left, but such passage shall not be made at street intersections, except where traffic is controlled; that is, where there is a traffic officer stationed or where there is an automatic signal.'

The proof was that traffic was not controlled at the place of the accident either by a traffic officer or an automatic signal.

The verdict was for the plaintiff.

There were several assignments of error, but it is only necessary for us to consider those which raise the question of contributory negligence which would bar the recovery by the plaintiff. It is contended by the defendant in error that, because Twenty-First street did not cross Seventh avenue, there was no intersection of streets as contemplated by this ordinance. We entertain the contrary view, which is supported by the weight of authority, although there are some cases to the contrary. In Pangborn v. Widdicomb Co., 223 Mich. 181, 193 N.W. 817, 31 A. L. R. 485, the Supreme Court of Michigan held:

'A street which enters another at right angles, but does not cross it, is an intersecting one within the meaning of a statute requiring one operating a motor vehicle at the intersection of a public highway to pass to the right of the intersection when turning to the left, and it is immaterial that the improved traveled way rounds the corner.'

In a note appended to the report of this case in 31 A. L. R. 488, supra, numerous cases are cited in support of the doctrine enunciated in that case.

In Hayes v. State, 11 Ga.App. 371, 75 S.E. 523, 527, the Supreme Court of Georgia, construing the words 'upon approaching a crossing of intersecting highways' as used in the statute of that state regulating the operation of automobiles, said:

'The further point is made that the charge contained in the first count in the indictment was not sustained, for the reason that the two streets named in the indictment did not cross or intersect each other as alleged in the indictment, but that one of the streets ended at the point where it touched the other. It is contended that this is not a 'crossing or intersecting of highways,' within the meaning of the act of 1910, and does not support the allegation in the indictment that the homicide occurred at the point where Gordon and Holderness streets cross and intersect. We cannot assent to this view. On the contrary, we think that the two streets did intersect each other, within the meaning and purpose of the law. Manifestly the object of section 5 of the act was to protect persons who might be upon a highway which approached another highway along which an automobile was being driven. There would be just as much reason for holding that one of the streets ended at the farther margin of the other street as there would be in saying that it ended when it touched the first margin of the street. The highway was in a condition to be used by pedestrians and others entirely across the other highway upon which the automobile was being driven. The latter highway extended across the margin of the former highway, and the case is plainly within the spirit and reason of the law.'

In Buckey v. White, 137 Md. 124, 111 A. 777, 778, the court construing a statute referring to road intersections, said:

'The second ground of objection is that the prayer is misleading because it instructs the jury as to the law of the road relating to the respective rights of vehicles approaching each other at intersecting roads. The reason assigned for this objection was that there was no evidence in the case of any intersecting roads, and that therefore the prayer was misleading.

'The theory upon which this objection rests is that a lateral road connecting with, but not crossing, another road, does not 'intersect' the latter within the meaning of the statute, and that the driver of an automobile while driving it along a main or trunk road is not required to yield the right of way to a machine approaching from his right along such a lateral road. Such a construction of the statutes is in our opinion, too narrow, and is opposed to its true meaning and intent. The purpose and design of the statute is to protect the traveling public against collisions at points where roads running at an angle to each other join, and to accomplish this end it provides a simple rule of universal application which so clearly defines the respective and relative rights of the drivers of automobiles approaching each other over such connecting roads that it eliminates the confusion and uncertainty which formerly prevailed under such circumstances as to which car was entitled to the right of way. The mischief for which the act was enacted as a remedy was this: That in the case of automobiles approaching each other along connecting roads running at an angle to each other in such a manner that unless one of them gave way to the other a collision would result, in the absence of some rule on the subject, there would be no way of promptly determining which should give way to the other, and the confusion incident to such situations was the cause of many accidents. The danger of such accidents which the Legislature intended by this statute to remove was the same at all points where two roads joined, and whether the roads so connecting actually crossed each other or merely connected could not possibly lessen or increase that danger. Since such was the intention of the Legislature...