Holdsworth v. Crews, 1932

• Decision Date: 12 April 1961
• Docket Number: No. 1932,1932
• Citation: 129 So.2d 153
• Parties: Graham C. HOLDSWORTH, Appellant, v. James P. CREWS, Appellee.
• Court: Florida District Court of Appeals

Page 153

129 So.2d 153

Graham C. HOLDSWORTH, Appellant, v. James P. CREWS, Appellee.

No. 1932.

District Court of Appeal of Florida, Second District.

April 12, 1961.

Rehearing Denied May 4, 1961.

Wallis E. Schulle; Earnest, Pruitt, Newell & Schulle, West Palm Beach, for appellant.

Robert E. Hathaway; Phillips & Hathaway, West Palm Beach, Claude S. Jones and Robert E. Mathews, Jr., Belle Glade, for appellee.

ALLEN, Chief Judge.

This is an appeal by the defendant below from an order granting appellee-plaintiff's motion for new trial and setting aside the jury verdict previously awarded in favor of defendant. The granting of the new trial was on the basis that the court had refused to give plaintiff's requested instructions relating to the last clear chance doctrine.

The accident occurred two miles south of the town of Pahokee, at an intersection with a private farm road called the Vandergriff-Williams Road. This dirt farm road extends eastward from State Road 15 thus forming a T-shaped intersection. State Road 15 is paved, 24 feet in width, and is paralleled on the east by a drainage canal. The canal is bordered by Australian pine trees. A wooden bridge spans the canal connecting the dirt road with the highway.

Around noon on the day in question, the weather was clear but there had been some precipitation earlier in the day. The defendant was approaching from the north and planned to turn left onto the dirt road. The defendant saw the plaintiff approaching from the south at a high rate of speed and, according to his own testimony, the defendant realized he could not make it across the highway. As plaintiff approached, he and his passenger exchanged comments in regard to whether defendant was going to turn left across their lane of traffic. The defendant reduced his speed to approximately five miles per hour, then decided he could make it and began his left turn.

In order to avoid a broadside collision the plaintiff swerved to the right off the highway and hit a tree. There was no contact between the two vehicles. The defendant's vehicle stopped with a portion of it protruding into plaintiff's lane of the highway. After plaintiff's vehicle struck the tree, the defendant pulled his vehicle off of the highway onto the dirt road.

The decisive question presented by this appeal is whether or not the trial court erred in granting a new trial on the ground that instructions relating to last clear chance requested by the plaintiff should have been given. The decision of when to give instructions on last clear chance and when to refuse such instructions is many times a difficult decision for a trial judge to make. Moreover, the Supreme Court has emphasized that a trial judge when faced with a request for a charge upon the doctrine of last clear chance should be extremely cautious and that such a charge should never be given unless the evidence clearly demonstrates its applicability. Yousko v. Vogt, Fla.1953, 63 So.2d 193, 194. Much has been written in regard to this doctrine in Florida and variously it has been said that the doctrine presupposes some negligence of a contributory character on the part of the plaintiff against which the doctrine prevails. Lindsay v. Thomas, 128 Fla. 293, 174 So. 418; that the doctrine is a phase of the law of proximate cause, Dunn Bus Service, Inc. v. McKinley, 130 Fla. 778, 178 So. 865; that the doctrine is based on 'the last negligent act,' Davis v. Cuesta, 146 Fla. 471, 1 So.2d 475, 476; and so on.

To state the rule seems simple: (1) Where the plaintiff has placed himself in a position of peril; (2) and the defendant then or thereafter becomes, or in the exercise of ordinary care ought to become, aware not only of that fact, but also that the plaintiff either reasonably cannot escape from peril, or apparently will not avail himself of opportunities open to him for doing so; (3) that the defendant subsequently has the opportunity, by the exercise of reasonable care, to have the plaintiff from harm; and (4) that the defendant fails to exercise such standard of care. Shattuck v. Mullen, Fla.App.1959, 115 So.2d 597; Parker v. Perfection Cooperative Dairies, Fla.App.1958, 102 So.2d 645.

To apply the rule, however, and state it so that the Florida decisions are consistent, which they are, requires an analysis accompanied by some precision of thought. To do otherwise and try to reconcile judicial holdings against a background of a myriad of factual situations would lead only to confusion and apparent inconsistencies. This problem of varying fact situations led the court to observe in Falnes v. Kaplan, Fla.1958, 101 So.2d 377, 379:

'Although certain elements necessary to the applicability of the doctrine have been defined, our re-examination of decisions on the subject confirms the view that no definite rule can be stated with reference to factual situations in which the charge should or should not be given, but that each case must be its own criterion. And the decision, of course, is one initially to be made by the trial judge. * * *'

It is basic, therefore, that the last clear chance is called into play only when the plaintiff is contributorily negligent and seeks to hurdle that bar to recovery. Accordingly, the contributorily negligent plaintiff avers that his own negligence does not bar his recovery because the defendant had the last clear chance to avoid the accident. Regardless of the philosophy behind this premise, if the plaintiff has not been contributorily negligent there is no occasion to apply last clear chance because the case is then purely one of whether the defendant was or was not negligent.

Illustrative of this proposition is the first Florida automobile case to discuss last clear chance wherein the doctrine was held to apply where a workman on a bridge, unaware of his danger, was killed by a truck, the driver of which had a clear view of the bridge for approximately two hundred feet before reaching it and was shouted at, in warning, by other workmen when he was one hundred seventy-five feet from the bridge. The Supreme Court, through Chief Justice Davis, in Merchants' Transportation Company v. Daniel, 1933, 109 Fla. 496, 149 So. 401, 403, explained the rationale of the doctrine as follows:

'The party who last has a clear opportunity of avoiding an accident, notwithstanding the negligence of his opponent, is considered solely responsible for it. Such is a simple statement of the doctrine of 'the last clear chance.' The last clear chance doctrine is not an exception to the general doctrine of contributory negligence. It does not permit one to recover in spite of his contributory negligence, but merely operates to relieve the negligence of a plaintiff or deceased in a particular instance, which would otherwise be regarded as contributory, from its character as such. This result it accomplishes by characterizing the negligence of the defendant, if it intervenes between the negligence of plaintiff or deceased, and the accident, as the sole proximate cause of the injury, and the plaintiff's antecedent negligence merely as a condition or remote cause. The antecedent negligence of the plaintiff or deceased having been thus relegated to the position of a condition or remote cause of the accident, it cannot be regarded as contributory, since it is well established that negligence, in order to be contributory, must be one of the proximate causes. * * *

'The courts are wide of an agreement as to the extent of the last clear chance doctrine as applied to the operation of automobiles and the like. It is certain however, that there are two situations in which it is uniformly applied: (1) Assuming that a traveler has negligently placed himself in a dangerous situation upon the highway, whenever the person in control of a motor vehicle actually sees his situation and should appreciate his danger, the last clear chance rule applies without regard to the continuing negligence of the traveler concurring with that of the operator up to the very instant of the injury; (2) Where the person in control of a motor vehicle, by keeping a reasonably careful lookout, commensurate with the dangerous character of the motor vehicle while in operation and the nature of the locality, could have discovered and appreciated another's perilous situation in time by the exercise of reasonable care to avoid injuring him, and the injury results from the failure to keep such lookout and to exercise such care, then the last clear chance rule applies, regardless of the injured person's prior negligence whenever that negligence has terminated, or culminated in a situation of peril from which the exercise of ordinary care on his part would not thereafter extricate him. This latter phase of the rule applies whenever injury results from new negligence, or from a continuance of the operator's negligence after that of the injured party has so ceased or culminated. * * *'

At the outset, the appellant in the instant case contends that the evidence does not warrant the giving of the requested instructions in regard to the last clear chance doctrine. Briefly the record shows that the defendant approached a T-intersection intending to turn left; that he saw plaintiff's vehicle approaching from the opposite direction a quarter to a half mile away at an approximate speed of 75 to 85 miles per hour; that he 'knew' he could not make it across the highway; but that he then, after stopping or nearly stopping, at the centerline of the intersection, did turn left into the path of the plaintiff's oncoming vehicle; and that plaintiff swerved to the right to avoid the collision, applied his brakes, and skidded until colliding with a tree beside the road.

A similar factual situation was presented in Panama City Transit Co. v. DuVernoy, 159 Fla. 890, 33 So.2d 48, 50. In that case the plaintiff motorcyclist was eastbound on a street in Panama City traveling at approximately sixty miles an hour; the westbound bus,...