Hendrick v. Strazzulla

Citation168 So.2d 156
Decision Date02 October 1964
Docket NumberNo. 4187,4187
PartiesPaul F. HENDRICK, Appellant, v. Philip J. STRAZZULLA, Frank Strazzulla, Dominic Strazzlla, Co-partners d/b/a Strazzulla Brothers Company, and Juan Flores, Appellees.
CourtCourt of Appeal of Florida (US)

Burdick & Silvian, West Palm Beach, for appellant.

Earnest, Pruitt & Schulle, West Palm Beach, for appellees.

WHITE, Judge.

This case arose from a collision of motor vehicles, and this appeal marks its second appearance in this court. On the former appeal we affirmed judgment for the defendants. Hendrick v. Strazzulla, Fla.App.,App.1960, 125 So.2d 589. On certiorari to the Supreme Court of Florida the decision of this court was quashed and the cause was remanded. Hendrick v. Strazzulla, Fla.App.,1961, 135 So.2d 1. The sole point determined by the Supreme court pertained to the admissibility of certain evidence, which question does not reappear on this appeal. The case was tried again and resulted in verdict and judgment for the defendants. From that judgment the present appeal was taken challenging the propriety of certain instructions to the jury.

The plaintiff sued for damages resulting from a collision of two trucks in a rural area some fourteen miles west of West Palm Beach. The collision occurred between midnight and 1:00 A.M. on March 3, 1955 when the truck owned by defendants Strazzulla and driven by defendant Flores truned left in front of the truck of the plaintiff as the latter was attempting to pass. It is contended defensively that the plaintiff was negligent in passing in an intersection contrary to statute. q. v. infra. Both trucks, as indicated, were travelling in the same direction, west on two-lane State Highway 80, the defendants' truck in front followed by plaintiff's truck driven by the plaintiff. The left turn attempted by the defendants' truck was directed to an unmarked private dirt road leading south from the highway to the farm of defendants Strazzulla, the owners of the front truck. The dirt road did not cross the highway. There were no signs or markers on the highway indicating the existence of the side road, although there was a narrow bridge across a canal running parallel to the highway which led to the dirt road. This road was not publicly owned or maintained.

The evidence showed that even in the daytime it was difficult if not impossible for a motorist to become aware of the dirt road any appreciable distance from it. Captain William Eddy of the Sheriff's Office reached the scene shortly after the collision. He was an experienced officer and a disinterested witness. He testified that there was a mound of dirt dredged out of the canal where shrubbery had grown up, all of which obstructed the view and rendered it difficult to see the dirt road. He stated: 'I have been familiar with this road and even myself in the daytime would have difficulty in riding along and knowing where to turn.' This testimony is not disputed and its effect on the point is beyond question. This witness also testified that at some time in the past a chain or cable had barred traffic on the dirt road in question.

The plaintiff testified that although he occasionally had travelled Highway 80 he did not know he was approaching a side road. The driver of the defendants' truck, co-defendant Juan Flores, was called by the plaintiff as an adverse witness. He testified that he was aware that a vehicle was following him; that he had observed the lights of the following vehicle for a couple of miles before reaching the side road with which he was thoroughly familiar. As stated, the dirt road led to the farm of defendants Strazzulla.

At the conclusion of all the evidence the court instructed the jury on the law of the case. Among other things the court read to the jury certain subsections of Fla.App.,Stat. Chapter 317, F.S.A., pertaining to the traffic laws of Florida, and charged:

'Now, further limitations on driving to the left of the center of the highway: No vehicle shall at any time be driven to the left side of the roadway under the following conditions:

'B. On approaching within 100 feet of or traversing any intersection or railroad grade crossing.

'Now, you will observe there that that section refers to passing to the left when approaching within 100 feet of or traversing any intersection, and this traffic code that we have here defines what is meant by an intersection, and I will read that to you:

'The area embraced within the prolongation or connection of the lateral curb line or if none, then the lateral boundary lines of the roadways of two highways which join one another at or approximately at right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict, that is defined as an intersection.

'Now, it refers, the definition there 'intersection' refers, as you will observe, to the connecting of two highways and we can refer to this as a definition of a highway, we can refer to this traffic code because the Legislature has set forth here the definition of a highway. Now, the highway is defined as:

'The entire width between the boundaries of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic.

'Now, if it appears here that this roadway or place across this bridge was open to the use of the public for purposes of vehicular traffic then under the definition given here it would be a highway, and these parties when approaching this intersection would be governed by this Statute which I have just read to you, placing a limitation on driving to the left when approaching within 100 feet of an intersection. On the other hand, if it appears that this was not such a way or place which was open to the use of the public for vehicular traffic, why, then, it would not be a highway and these parties would not be concerned with this Statute and it would have no application at all. And further, this Statute which I have just read to you, placing a limit on the driving of a motor vehicle to the left and passing another within 100 feet of an intersection, further, I charge you, that under the provisions of this Statute:

'A driver is prohibited from changing his lane of travel in attempting to drive to the left side of the highway at any point within 100 feet of an intersection, * * *.'

The court further charged:

'I want to charge you at this time, if I can find the charge on it, on the effect of the failure to abide by one of our State traffic regulations if you find that the State traffic regulation has been violated, under the evidence and the charge of the Court. Now, the law is that a violation of a State traffic law, such as I have just read to you, is what we say called prima facie evidence of negligence. * * *' (All emphases added.)

The court gave the general charge on the effect of contributory negligence and a charge was given with respect to the duties and responsibilities of a driver attempting to make a turn to the left in changing his direction of travel. However, the prime issue of fact pointedly submitted to the jury was whether or not the side road 'was open to vehicular traffic.'

Even assuming that the protested charge was applicable in part, it was misleading in that it postulated without evidentiary predicated that the plaintiff had violated the statute--that is, that he had driven to the left side of the highway 'within 100 feet of the side road.' See Clark v. Sumner, Fla.App.,1954, 72 So.2d 375, quoted infra. There is a conspicuous absence of evidence tending to show such a change of lanes within the 100 feet, and in the circumstances the instruction practically invited a verdict for the defendants....

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4 cases
  • Saudi Arabian Airlines Corp. v. Dunn, AO-97
    • United States
    • Court of Appeal of Florida (US)
    • 14 de setembro de 1983
    ...not where the "facts and circumstances on this appeal are materially different from those on the former appeal." Hendrick v. Strazzulla, 168 So.2d 156, 161 (Fla. 2nd DCA 1964), cert. discharged 177 So.2d 1 (Fla.1965). Guided by these principles, we find that this court's prior decision in D......
  • Strazzulla v. Hendrick, 33968
    • United States
    • United States State Supreme Court of Florida
    • 30 de junho de 1965
    ...the doctrine of 'the law of the case'; See Billingham v. Thiefl, 109 So.2d 763. The decision which we here review, Hendrick v. Strazzulla, Fla.App.1964, 168 So.2d 156, was entered by the appellate court on the second appeal of the case to it. On the first appeal, a verdict and judgment for ......
  • Roach v. Lacho
    • United States
    • United States State Supreme Court of Missouri
    • 9 de maio de 1966
    ...herein expressed. The cases of Lemkie v. Boice, 329 Mich. 278, 45 N.W.2d 288; Clark v. Summer, Fla., 72 So.2d 375, and Hendrick v. Strazzulla, Fla.App., 168 So.2d 156, reach opposite results. We have considered these cases, but see no useful purpose in discussing and analyzing them in this ......
  • American Fire & Cas. Co. v. Tillberg
    • United States
    • Court of Appeal of Florida (US)
    • 17 de maio de 1967
    ...without reference to a view expressed by the previous circuit judge on a ruling on the pleadings. In the case of Hendrick v. Strazzulla, Fla.App.1964, 168 So.2d 156, we stated, in an opinion written by the late Judge 'Finally, it is contended by the defendants that in this court's decision ......

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