Gray v. Break, 82-6

• Decision Date: 06 October 1983
• Docket Number: No. 82-6,82-6
• Citation: 440 So.2d 1297
• Parties: David William GRAY, Jr., individually, David William Gray, Sr., his father, and Jeanne H. Gray, his mother, individually, Appellants, v. Edward M. BREAK, et al., Appellees.
• Court: Florida District Court of Appeals

Page 1297

440 So.2d 1297

David William GRAY, Jr., individually, David William Gray, Sr., his father, and Jeanne H. Gray, his mother, individually, Appellants, v. Edward M. BREAK, et al., Appellees.

No. 82-6.

District Court of Appeal of Florida,

Fifth District.

Oct. 6, 1983.

Rehearings Denied Nov. 23, 1983.

L. Edward McClellan, Jr., of McClellan, Kaster & Vostrejs, P.A., Ocala, for appellants.

James O. Driscoll of Driscoll, Langston & Kane, P.A., Orlando, for appellees Edward M. Break and State Farm Mut. Auto. Ins. Co.

Jennings L. Hurt, III, of Anderson & Hurt, P.A., Orlando, for appellees Robb S. Gooch, Sally Gooch and American Motorists Ins. Co.

Wallace F. Stalnaker, Jr., Casselberry, for appellees Shawn D. Clark, Sandra M. Clark, and State Farm Fire and Cas. Co.

Michael A. Miller of Walker, Buckmaster, Miller & Ketcham, P.A., Orlando, for appellees Stephen Dart, Jack Dart and Ins. Co. of North America.

Lora Dunlap of Akerman, Senterfitt & Eidson, Orlando, for appellees Karen Leanne Miller and Unigard Ins. Co.

PER CURIAM.

This is an appeal from a final judgment in favor of the defendants below. The action was for personal injury and property damage arising out of a motorcycle/car collision occurring on November 8, 1977. The action was brought by a minor plaintiff, David William Gray, Jr., the operator of a motorcycle, together with the derivative claims of his parents, against multiple defendants: Edward M. Break, the operator of an automobile; Break's insurance carrier; and various pedestrians: Stephen Dart, Shawn D. Clark, Robb S. Gooch, Karen Leanne Miller and Susan Hutchison Caldwell. An insurance carrier was joined with each pedestrian.

At the conclusion of the evidence, the trial court directed a verdict for the pedestrians and their insurance carriers and the case was submitted to the jury on the issues between the plaintiffs and the defendant Break. The jury returned a defense verdict. This appeal followed judgment for all defendants.

The complaint alleged the pedestrians were negligent in crossing State Road 424 in a "jaywalking" manner and that Gray, Jr., was injured when the motorcycle he was operating collided with the rear of Break's automobile which, according to Gray's complaint, stopped abruptly in the driving lane to allow the jaywalking pedestrians to cross. In a separate count, the Grays alleged that Break was negligent in the manner in which he stopped his automobile, resulting in the collision and damages referred to above.

The testimony is in conflict as to the conduct of the pedestrians in "jaywalking" across State Road 424 and in Break's reaction or manner of stopping. The pedestrians, for example, maintain that they had not crossed the double yellow line dividing the north bound and south bound lanes, and that they did not hear brakes or tires squealing prior to the impact. The pedestrian Clark stated that Break's stop was "like a panic stop." The pedestrian Miller stated that the stop was sudden but without skidding and that "I may call it sudden because I wasn't expecting it." The pedestrian Gooch indicated that the stop was "sudden" because he was "waiting for the car and the motorcycle to come by, and everything happened." One of the pedestrians admitted being charged with and pleading guilty to the jaywalking charge.

Break, on the other hand, testified that although no pedestrian had crossed into his actual travel lane, the group had crossed the double yellow line into one of the south bound lanes on which he was proceeding. He heard screeching brakes before the impact, but he did not slam on his brakes and his stop was not sudden or abrupt. He further testified that when approximately 100 feet from the pedestrians, he took his foot off the gas pedal, slowing, and gradually applied the brakes. Prior to that, he said, he had eased up on the accelerator. He stated he stopped his car because he was "just not sure of what they were going to do. I was afraid that one of them (the pedestrians) might dart in front of me or just weren't paying attention."

Gray, Jr., testified that Break stopped abruptly and suddenly in front of him and he thereupon crashed into the rear end of Break's vehicle. Other testimony reflected that there were also traffic signals in operation approximately three blocks north of where the pedestrians crossed. There was a marked crosswalk and traffic signal at Hazel Street, about 250 feet south of where the pedestrians crossed.

Despite the foregoing conflict in testimony the lower court granted a motion for a directed verdict in favor of the pedestrians. We believe there was a basis within this evidence from which the jury reasonably could have found that actions by the pedestrians contributed to the proximate cause of the accident.

It should be noted that upon consideration of a motion for directed verdict, the plaintiff is entitled to the resolution of all inconsistencies in the evidence in his favor. Such motion should not be granted where the jury might reason that the actions of the pedestrians were the proximate cause of the accident sued upon. In order to maintain a cause of action sounding in negligence, the plaintiff must establish that the injury or damage to the...