James v. Keene, 58-647

• Decision Date: 09 June 1960
• Docket Number: No. 58-647,58-647
• Citation: 121 So.2d 186
• Parties: Marion A. JAMES and Donald V. James, her husband, Appellants, v. Eunia D. KEENE and John B. Keene, Appellees.
• Court: Florida District Court of Appeals

Page 186

121 So.2d 186

Marion A. JAMES and Donald V. James, her husband, Appellants, v. Eunia D. KEENE and John B. Keene, Appellees.

No. 58-647.

District Court of Appeal of Florida, Third District.

June 9, 1960.

Rehearing Denied June 30, 1960.

Fuller & Brumer, Miami, for appellants.

Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, for appellees.

HORTON, Chief Judge.

The controlling question on this appeal is the correctness of the court's ruling on the plaintiffs' requested jury instruction relative to the doctrine of last clear chance. The court refused to give the instruction and the jury returned a verdict in favor of the defendants. This appeal followed.

The facts reveal that the plaintiff, Marion James, was attempting to cross Biscayne Boulevard, a four-lane thoroughfare, near the intersection of N.E. 109th Street in Dade County. It was 8:00 in the evening, the weather was clear and visibility was good. The plaintiff had left a restaurant on the east side of Biscayne Boulevard and was walking to the west side. There are four traffic lanes on Biscayne Boulevard. She had crossed the two northbound lanes and one of the southbound when she was hit in the farthest southbound lane just a few feet short of the western edge of the Boulevard. It was ascertained from the evidence that the plaintiff was hit by the right front of the automobile driven by the defendant, Eunia Keene, and owned by her husband, John Keene.

The plaintiff testified that she could recall nothing from the time she left the restaurant until some time after the accident, thus shedding no light on any events just prior to the impact. The defendant, Eunia Keene, testified that she was going thirty miles per hour (in a 45-mile-per-hour zone) and she never saw the plaintiff untill she was six feet away and slightly to the left. She did not have time to blow her horn but jammed on her brakes without swerving to either side. The Keene vehicle laid down approximately 38 feet of skid marks.

Roy LaRock, a witness for the plaintiffs, added little to the overall picture. He was standing on the east side of Biscayne Boulevard, watching the plaintiff 'hurrying' across to the west side. From his vantage point, he could not witness the actual impact, but 'thought she made it across the street'. Plaintiffs' witness, Leonard Parker, was proceeding in the inside southbound lane approximately fifteen feet to the rear and left of the Keene vehicle at approximately the same rate of speed. Parker first saw the plaintiff several hundred feet away. He watched the plaintiff cross the center line into the lane in which he was proceeding, cross the inside lane and continue into the path of the Keene vehicle. Parker commented to his wife, 'There is a lady who is going to get hit,' but later thought she had made it safely.

At the conclusion of all the evidence, the parties had a conference on the jury instructions. The plaintiff requested that the following instruction be given:

'In determining the liability in this case, if any exists, you are to take into consideration to the extent applicable, the doctrine of last clear chance. This doctrine recognizes that the Plaintiff may have been negligent in the beginning. That is to say, may have done some act or omitted some safeguard that would have been appropriate under the circumstances, and yet allow the plaintiff to recover if the circumstances are such that after such action on the part of the plaintiff, the defendant driving the automobile in this case could thereafter have avoided the accident.

'The last clear chance theory of law is not to be limited to the actual knowledge on the part of defendant as to the peril of the plaintiff which existed, but the driver defendant may be liable if she saw or by the exercise of ordinary care could have seen the peril of the plaintiff in time to have avoided the accident by the exercise of ordinary care but failed to do so.'

The requested instruction was patterned after the instruction approved by the court in Parker v. Perfection Cooperative Dairies, Fla.App.1958, 102 So.2d 645. The trial court refused the requested charge.

The doctrine of last clear chance is generally recognized in Florida; however, the circumstances which give rise to the application of the doctrine are not clearly defined. In the some 25 years since Chief Justice Davis, in Merchants' Transportation Co. v. Daniel, 109 Fla. 496, 149 So. 401, laid the groundwork for the doctrine, the Florida courts have been confronted with a variety of litigation seeking interpretation of this elusive doctrine. By way of definition, the doctrine was succinctly stated in the Merchants' Transter case as follows (149 So. at page 403):

'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. Davies v. Mann, 10 Mees. & W. 546, 6 Juris. pt. 2, 954; Tanner v. Louisville & N. R. Co., 60 Ala. 621; Smith v. Norfolk & S. R. Co., 114 N.C. 728, 19 S.E. 863, 923, 25 L.R.A. 287; Bogan v. Carolina Central R. Co., 129 N.C. 154, 39 S.E. 808, 55 L.R.A. 418, and notes.'

The Florida courts have refused to authorize a jury instruction on last clear chance when the facts disclosed that the defendant had no opportunity under the circumstances to avoid the injury. ¹

The facts presented in the instant case reveal that the plaintiff was clearly inattentive. Witness Parker testified that he saw the accident developing before his eyes and commented to his wife, 'There is a lady who is going to get hit.' Even the testimony, or the lack thereof, of the plaintiff reveals that she was completely unaware, or inattentive, to the impending danger of the defendant's automobile. It appears from the record that had the plaintiff been attentive she could have avoided the injury by checking her approach or hastening out of the path of the automobile. Likewise, it appears that the defendant was equally inattentive to the condition of the plaintiff. Her own testimony discloses that she did not become aware of the plaintiff until she was six feet away and unable to avoid the injury, although the testimony is conclusive as to the fact that the plaintiff was visible for several hundred feet.

Based upon the foregoing facts, we feel that this case falls within the rule announced in Yousko v. Vogt, Fla.1953, 63 So.2d 193, wherein the court said:

'In this case it is obvious that neither party had the last 'clear opportunity of avoiding' the accident. Although each party had a clear, unobstructed view, neither saw the other until the instant before the appulse, at which time appellant admits he saw the automobile.'

The holding of the United States Court of Appeals, Fifth Circuit, in Humphries v. Boersma, 5 Cir., 190 F.2d 843, 845, supports the principle as announced in Yousko v. Vogt, supra. In the Humphries case, the court was called upon to determine the applicability of the doctrine of last clear chance under a set of facts closely analogous to the facts in the case at bar. Mrs. Boersma was travelling north on North Andrews Avenue in the City of Fort Lauderdale, Florida, and Mrs. Humphries was attempting to cross North Andrews Avenue from the east to the west side. The Boersma automobile was proceeding at a speed of approximately 25 miles per hour, the weather was clear, although it was nighttime, the streets dry, and Mrs. Humphries was wearing dark clothing. Mrs. Humphries apparently did not look to the south, the direction from which the Boersma automobile was coming, but proceeded across into North Andrews Avenue approximately fifteen feet from the east curb before she was struck by the right fender of the Boersma automobile. Mrs. Boersma did not see Mrs. Humphries until she was directly in front of her automobile, at which time Mrs. Boersma immediately swerved to her left and applied her brakes, but not in time to avoid striking Mrs. Humphries. In affirming a judgment in favor of Mrs. Boersma, the Fifth Circuit Court of Appeals said:

'Florida law recognizes the doctrine of last clear chance, but to successfully invoke it the plaintiff must show that he was free of concurring negligence, and if his own contributory negligence continued until the time of the injurious act, he can not recover.'

Generally, the determination of such facts is for the jury, subject to instruction from the trial judge; however, when as here, the facts as disclosed from the lips of the parties themselves reveal a mutual inattentiveness to each other, the trial judge is correct in refusing the charge on last clear chance. This is necessarily so as proximate cause, the very basis of last clear chance, cannot be established against the defendant. But for the inattentive negligence of the plaintiff the accident could have been avoided. Likewise, but for the inattentive negligence of the defendant, the accident...