Guerriero v. Adams, 65--582

• Citation: 190 So.2d 432
• Decision Date: 20 September 1966
• Docket Number: No. 65--582,65--582
• Parties: Louis GUERRIERO and Katherine P. Guerriero, husband and wife, Appellants, v. Richard C. ADAMS and Winna Sue Adams, husband and wife, Appellees.
• Court: Florida District Court of Appeals

Page 432

190 So.2d 432

Louis GUERRIERO and Katherine P. Guerriero, husband and wife, Appellants, v. Richard C. ADAMS and Winna Sue Adams, husband and wife, Appellees.

No. 65--582.

District Court of Appeal of Florida, Third District.

Sept. 20, 1966.

Rehearing Denied Oct. 19, 1966.

Carroll, Vega, Brown & Nichols, Naples, for appellants.

Dean, Adams, George & Wood, Miami, for appellees.

Before PEARSON, CARROLL and BARKDULL, JJ.

CARROLL, Judge.

This is an automobile accident case. The plaintiffs sued defendants for damages for personal injuries received when an automobile driven by the plaintiff Louis Guerriero, in which his wife the plaintiff Katherine P. Guerriero was a passenger, was involved in a head-on collision with an automobile owned by the defendant Richard C. Adams, driven by his wife the defendant Winna Sue Adams, on the Tamiami Trail (U.S. Highway 41) in Collier County. Plaintiffs alleged their injuries were proximately caused by negligence of the defendant driver. Defendants denied negligence and pleaded contributory negligence. On trial before a jury, at the conclusion of the plaintiffs' case, motion of defendants for directed verdict was granted. The appeal by the plaintiffs from the judgment entered thereon challenges the propriety of the ruling directing a verdict.

On this appeal, as in the trial court on consideration of the defendants' motion for directed verdict, the determinative questions are, as to the claim of the plaintiff Louis Guerriero, whether there was evidence upon which the jury could find that the defendant driver was negligent, and if so, whether the plaintiff driver was guilty of contributory negligence as a matter of law; and, as to the claim of the plaintiff Katherine Guerriero, who as a passenger would be unaffected by contributory negligence if any of her husband, whether it was made to appear as a matter of law that the defendant driver was free of negligence proximately causing her injuries or of any negligence which, combined with negligence of the plaintiff driver, was a contributing proximate cause thereof.

Controlling the trial judge's consideration of those questions on the defendants' motion for directed verdict was the rule pronounced by statute and repeatedly in decisions that such a verdict should not be granted unless 'it is clear that there is no evidence whatever adduced that could in law support a verdict for plaintiff.' Section 54.17, Fla.Stat., F.S.A. Chambers v. Loftin, Fla.1953, 67 So.2d 220, 221; Mullis v. City of Miami, Fla.1952,60 So.2d 174; Cadore v. Karp, Fla.1957, 91 So.2d 806; Paikin v. Beach Cabs, Inc., Fla.App.1966, 187 So.2d 93, 94. Likewise, on reviewing the judgment for defendants based on a directed verdict this court is required to observe the settled rule, as stated by the Supreme Court in Rodi v. Florida Greyhound Lines, Fla.1953, 62 So.2d 355, 356, that we should consider the testimony adduced in the cause in the light most favorable to the plaintiffs, disregarding conflicts in the evidence and indulging in plaintiffs' favor every reasonable intendment deducible from the evidence. Hardware Mutual Casualty Co. v. Tampa Electric Co., Fla.1952, 60 So.2d 179, 40 A.L.R.2d 1293; Brightwell v. Beem, Fla.1956, 90 So.2d 320, 322; Guhman v. Florida Power & Light Company, Fla.App.1962, 139 So.2d 749, 750.

On so considering the evidence presented by and on behalf of the plaintiffs we hold it was such as to require submission of the case to the jury on the issues of negligence and contributory negligence and that the able trial judge committed error in directing a verdict in favor of the defendants and against the plaintiffs.

Viewed in the light favorable to the plaintiffs and omitting statement of conflicts or inconsistencies in the testimony where not essential, facts disclosed in the evidence included the following.

The plaintiffs were traveling west by automobile on the Tamiami Trail. The plaintiff Louis Guerriero was driving and the plaintiff Katherine P. Guerriero, his wife, was a passenger. Before reaching the city of Naples they turned off the two-lane highway, to the right into Golden Gates Welcome Station, maintained by Gulf American Land Corporation in furtherance of its land development operations. At the time plaintiffs returned to the highway the weather was overcast, with light rain. The plaintiff driver proceeded to within a few feet of the highway and stopped. He looked to the left and observed no traffic approaching in the westbound lane which he was about to enter. He also looked to the right but stated he gave no concern to traffic approaching from the west in the eastbound lane. He proceeded onto the highway, turning to the right into the near or westbound lane, saw a car pass him going east in the eastbound lane and almost immediately thereafter was struck head-on by the defendant's vehicle proceeding east in the lane in which the plaintiff driver was proceeding west. The accident was witnessed by the managing attendant at the Welcome Station. He was inside the Welcome Station building situated approximately 100 feet off the highway, looking through a glassed front opening which permitted him a view of the plaintiff driver upon entering the highway and at the point of impact, and of the highway for approximately 100 feet west of the point of impact. That witness stated the plaintiff stopped before entering the highway, then pulled on to the highway and proceeded in the right-hand or westbound lane for a distance of approximately 50 feet to the point of impact; that he first saw the defendant's vehicle in the westbound lane when it was approximately 100 feet from the point of impact. He fixed the point of impact with reference to a certain white post at the edge of the highway. The measured distance made the point of impact 40 feet west of the edge of the driveway way which entered the highway from the Welcome Station, and the witness said plaintiff entered the highway 10 feet east of the west edge of that driveway, thus making the plaintiff on the highway for 50 feet before impact.

The speed of the plaintiff driver on the highway was fixed by the eye witness as having reached 10 or 15 miles per hour at the point of impact. An expert witness testified that a driver so entering the highway and proceeding 50 feet from a standstill to an attained speed of 10 miles per hour would be driving on the highway approximately 6 seconds, and one driving 50 feet from a standstill to an attained speed of 15 miles per hour would be on the highway 4.5 seconds.

The defendant driver had been proceeding east behind another automobile at a speed, according to her, of approximately 55 miles per hour. One hundred and seventy-five feet west of the driveway entrance to the Golden Gates Welcome Station there was an intersecting highway. The defendant driver testified that she pulled into the left or...