Klepper v. Breslin

• Decision Date: 19 October 1955
• Citation: 83 So.2d 587
• Parties: Raphael KLEPPER, Appellant, v. George W. BRESLIN and Alma Conway Breslin, his wife, Appellees.
• Court: Florida Supreme Court

Page 587

83 So.2d 587

Raphael KLEPPER, Appellant, v. George W. BRESLIN and Alma Conway Breslin, his wife, Appellees.

Supreme Court of Florida, En Banc.

Oct. 19, 1955.

Rehearing Denied Dec. 13, 1955.

Osborne, Copp & Markham, Jacksonville, for appellant.

Marks, Gray, Yates & Conroy and Francis P. Conroy, Jacksonville, for appellees.

THORNAL, Justice.

The appellant, Raphael Klepper, as plaintiff in the trial court, sued the appellees for damages resulting from the fatal injury of his four-year old son, Scott Robert Klepper, allegedly caused by the negligent operation of the automobile fo the appellee, George W. Breslin, by his wife, Alma Conway Breslin. The jury rendered a verdict for the defendants and after denial of a motion for new trial, the plaintiff appeals.

The parties all lived in a strictly residential area known as Ridgewood in Duval County. The defendants resided some five hundred feet or more north of the plaintiff and his family on the opposite side of the street. It was generally known that there were numerous small children living in the community. Signs warning 'Children-Slow' were posted around the area. Immediately prior to the accident, Mrs. Breslin backed out of her driveway and proceeded along Peachtree Circle East in a southerly direction. There is a conflict as to the speed at which she was driving.

At a distance of four to five hundred feet from the accident Mrs. Breslin saw three small children and a dog playing in the park area on the east side of the street immediately contiguous to the paved roadway. As she approached the scene, two of the children were standing several feet off of the road. One was a little girl about five years old and the other was Robert's little brother Russell, aged two years. The little girl appeared to be holding him back from the road. Scott Robert Klepper, age four, was standing by a fence with his arm around a fence rail which was shown to be some 18 feet east of the east edge of the paved road, which was also 18 feet wide. There was no sidewalk. Mrs. Breslin had noticed the small dog running after the boy toward the fence away from the road. At this point the dog evidently turned because it ran across the road in front of the Breslin automobile. Mrs. Breslin veered to the right to miss the dog and after learning from her maid, who was sitting on the front seat by her, that she had missed the dog, she again glanced to her right, then straightened up, as she testified, 'to pay attention to my driving'. The maid held Mrs. Breslin's baby on her lap and there were two larger children on the back seat of her car. It appears from the record that she assumed the children were safely off the road where she had last seen them. Thereupon, she noticed the Klepper child running across the road and he seemed to stumble and fall directly in front of her automobile. She stated that the running of the dog, the veering of the car, her 'straightening up' and the running of the boy all happened in a matter of 'four or five seconds'. The car struck the child and Mrs. Breslin stated that she did not apply the brakes of her car immediately in an effort to avoid actually passing over the little boy but without the application of her brakes her car came to a stop approximately 40 feet from the point of contact with the child. There were marks along the pavement described as 'scuff marks' for a distance of approximately 40 feet back of the automobile up to the point where the child's body was found. The little boy was pronounced dead upon arrival at the hospital shortly after the accident. The deceased child's mother was in her home preparing the evening meal at the time of the tragedy. The Klepper home was almost directly across the street from the area where the children were playing by the fence mentioned above. The Kleppers had previously fenced in their back yard as a playing area for the little boy but for several months prior to the accident, his mother had permitted him to play in the front yard. The plaintiff-father knew of this practice. The mother had never known him to run across the road unattended. He had been taught safety precautions in kindergarten. She stated that she checked on him about every five minutes, glancing out of her kitchen window. She testified further that she had noticed the children in her own front yard about five minutes prior to the unfortunate occurrence.

One witness testified that she saw the Breslin car some distance prior to the accident and that in her judgment it was traveling 30 to 35 miles per hour. Mrs. Breslin testified that actually she was traveling 15 to 18 miles per hour just before the accident; that immediately prior to the contact with the child, she had stepped on her brakes to avoid the dog, and that at the time of contact she had just moved her foot from the brakes and was in the act of stepping on the accelerator to get her car under way again.

The case was tried on the defenses of a general denial and the alleged contributory negligence of the mother of the deceased on the theory that she had failed to maintain adequate supervision and control over the small child. The Court among other instructions charged the jury, at the request of the defendants, on the doctrine of 'sudden emergency,' 'unavoidable accident,' 'darting out,' and contributory negligence by the mother as being chargeable against the plaintiff-father. The plaintiff appeals alleging that these charges constitute errors and in addition he contends that the trial judge should have directed a verdict for the plaintiff on the alleged negligence of the defendants.

By assignment of errors numbered 6, 8 and 9, the appellant-father contends that the trial judge committed reversible error by instructing the jury, at the request of the appellees, as follows:

'Where the operator of an automobile by a sudden emergency, not due to her own negligence, is placed in a position of imminent danger and has insufficient time to determine with certainty the best course to pursue, she is not held to the same accuracy of judgment as is required under ordinary circumstances, and if she pursues a course of action to avoid an accident such as a person of ordinary prudence placed in a like position might choose, she is not guilty of negligence, even though she did not adopt the wisest choice.

'If you find from the evidence that the plaintiff's decedent, Scott Robert Klepper, darted or ran suddenly onto the highway in front of the defendant's automobile, provided there was no negligence on the part of the defendant, Mrs. Breslin, such automobile was too close for her to avoid hitting him in the exercise of ordinary care, as defined in these instructions, the collision by the defendants' automobile and said Scott Robert Klepper would be an unavoidable accident, and you should find the defendants not guilty.

'Where a child is in a place of safety on a sidewalk or elsewhere and exhibits no intention to cross the street or makes any movements showing such a purpose until the car is so near that it cannot be stopped, and the child suddenly darts in front of it and is injured, the owner of the car is not chargeable with negligence because of the failure of the driver to stop the car.'

It is the contention of the appellant that if a 'sudden emergency' existed it resulted from the negligence of the driver of the automobile and further that the accident could not have been 'unavoidable' for the reason that in the view of the appellant the driver of the automobile had ample opportunity to see the dangerous situation long before the accident occurred and by the exercise of reasonable care and caution under all of the circumstances therein obtaining, particularly including the presence of small children in the area, could have avoided striking the little boy.

While on the surface the position of the appellant might appear to have merit, it should be noted that the instructions to which he offers objection were cautiously framed on the condition that the driver of the automobile would have to be without negligence on her own part. It is clear from this record that the trial judge adopted the view that under all of the evidence the question of negligence, contributory negligence, and the related issues as to whether the driver of the automobile exercised due care appropriate to the particular circumstances, should be submitted to the jury as involving a factual conflict which could not otherwise be resolved as a matter of law.

It should further be noted that at the request of the appellant, the trial judge had carefully instructed the jury on the unpredictable nature of small children and the fact that their movements are erratic and that they cannot be relied upon to exercise the degree of care for their own safety in the manner to be demanded of adults. The trial judge appropriately instructed the jury as to the responsibility of the driver of motor vehicles in regard to anticipating these unpredictable movements of young children and, by his instructions, he imposed upon the motorist the duty to keep a vigilant lookout where such motorist observes children of tender years playing along the side of the road. He told them it was a matter of common knowledge that oftentimes children under these circumstances strayed upon the road and that the motorist was required to govern himself accordingly.

Finally, at the request of appellant, the jury was instructed on the matter of the applicability of the doctrine of the last clear chance as related to the alleged negligence of the automobile driver, Mrs. Breslin.

It appears to this Court that the trial judge very completely and properly advised the jury as to the law applicable under all of the circumstances and then with propriety deposited with the jury the problem of resolving the factual conflicts in the light of the law as pronounced by the Court.

By assignment of errors numbered 1 and 2, the appellant-father complains that the...