Lee County Oil Co. v. Marshall, No. 70

CourtCourt of Appeal of Florida (US)
Writing for the CourtWIGGINTON; STURGIS; WIGGINTON; STURGIS
Citation98 So.2d 510
Docket NumberNo. 70
Decision Date19 November 1957
PartiesLEE COUNTY OIL COMPANY, Inc., a corporation, Appellant, v. Thomas E. MARSHALL, Appellee.

Page 510

98 So.2d 510
LEE COUNTY OIL COMPANY, Inc., a corporation, Appellant,
v.
Thomas E. MARSHALL, Appellee.
No. 70.
District Court of Appeal of Florida, First District.
Nov. 19, 1957.
Rehearing Denied Dec. 10, 1957.

Page 511

J. M. Sapp and H. P. Sapp, Panama City, for appellant.

Thomas Sale and Liddon, Isler & Welch, Panama City, for appellee.

WIGGINTON, Judge.

Appellee, as plaintiff in the trial court, was awarded a verdict against appellant for injuries sustained in a motor vehicle collision. It is from final judgment consequent upon such verdict that this appeal is taken.

The evidence shows without conflict that plaintiff, a fireman employed by the City of Panama City, was riding on the tailgate of the City's fire truck when it left its station on an emergency call at approximately 11 o'clock on the morning of the accident in which he was injured. From its station the fire truck proceeded some two hundred yards easterly along U. S. Highway 98, one of the City's main arterial streets, to a point of intersection with East Avenue. As it approached this intersection the fire truck was 'riding the center line' with bell ringing, siren blowing, and its red blinker

Page 512

light flashing a warning to approaching traffic. The driver of the fire truck testified that as he approached the intersection he removed his foot from the accelerator to break his speed, and failing to observe any traffic conditions appearing to him to be potentially hazardous, he proceeded.

As the fire truck crossed the center of the intersection it was struck by defendant's fully loaded, 56,000-pound, oil transport tractor-trailer unit, which was being driven north along East Avenue at a lawful rate of twenty miles per hour. There is complete conflict as to whether the electrically operated traffic light suspended above the center of the intersection showed green, amber or red as the fire truck entered the intersection. The driver of the defendant's transport testified that he neither saw the fire truck nor heard its warning signals in time to avoid the collision. He attributed this failure to the fact that a store building located on the southwest corner of the intersection completely obscured his view of traffic approaching from the west; his failure to hear the bell or siren being due in large measure to the noise made by the diesel motor of the transport. Defendant's driver further testified that he first observed the fire truck immediately upon coming abreast of the aforementioned building and at that moment applied his brakes and veered to the right in an effort to avoid the collision. The evidence shows the distance from the corner of the building to the center of the intersection to be approximately thirty-six feet, and further shows skidmarks on the pavement for a distance of five feet, which marks apparently were laid down by the rear wheels of the transport tractor prior to the impact. On cross examination defendant's driver testified that he could stop his vehicle within a distance of twenty feet when traveling at a speed of twenty miles per hour.

Three grounds are urged for reversal. Two of these grounds challenge the sufficiency of the evidence, and the third alleges error by the trial court in instructing the jury, over defendant's objection, on the doctrine of the last clear chance.

It is fundamental that an appellate court will review only those questions timely presented and ruled upon in the trial court. 1 And on appeal, a claim not made before the trial court in the proper manner will be considered as waived. 2

31 F.S.A. Rule 2.7, Florida Rules of Civil Procedure, which is taken from and is almost identical with Rule 50, Federal Rules of Civil Procedure, 28 U.S.C.A. provides the only appropriate means of testing the sufficiency of evidence before the trial court. Subsection (b) of that rule provides that at the close of all the evidence either party may move for a directed verdict. If such motion is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a renewal of the motion within ten days after the verdict, or,...

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32 practice notes
  • Dean Witter Reynolds, Inc. v. Hammock, Nos. BE-226
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 1986
    ...for directed verdict at the end of all evidence has waived the right to make that motion." And in Lee County Oil Company v. Marshall, 98 So.2d 510, 512-513 (Fla. 1st DCA), cert. denied 101 So.2d 819 (Fla.1958), this court held that one who failed to move for a directed verdict at the c......
  • Caristi v. State, No. 90-97
    • United States
    • Court of Appeal of Florida (US)
    • April 11, 1991
    ...barred from raising these arguments on this appeal because they were not raised before the trial court. Lee County Oil Co. v. Marshall, 98 So.2d 510 (Fla. 1st DCA 1957). Moreover, these constitutional arguments have repeatedly been held to lack any merit. See, e.g., Barber v. State, 564 So.......
  • Royal Kitchen Cabinet Corp. v. Palcic, No. 58-190
    • United States
    • Court of Appeal of Florida (US)
    • April 21, 1959
    ...cf. Yousko v. Vogt, Fla.1953, 63 So.2d 193; Ippolito v. Brenner, Fla.1954, 72 So.2d 802; Lee County Oil Co. v. Marshall, Fla.App.1957, 98 So.2d 510; Falnes v. Kaplan, supra; Edwards v. Donaldson, Fla.App.1958, 103 So.2d It is true that in law the last clear chance doctrine is not an excepti......
  • James v. Keene, No. 58-647
    • United States
    • Court of Appeal of Florida (US)
    • June 9, 1960
    ...1 Becker v. Blum, 142 Fla. 60, 194 So. 275; Ippolito v. Brenner, Fla.1954, 72 So.2d 802; Lee County Oil Co. v. Marshall, Fla.App.1957, 98 So.2d 510; Falnes v. Kaplan, Fla.1958, 101 So.2d 377; Edwards v. Donaldson, Fla.App.1958, 103 So.2d 256; Gordon v. Cozart, Fla.App.1959, 110 So.2d 2 As s......
  • Request a trial to view additional results
32 cases
  • Dean Witter Reynolds, Inc. v. Hammock, Nos. BE-226
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 1986
    ...for directed verdict at the end of all evidence has waived the right to make that motion." And in Lee County Oil Company v. Marshall, 98 So.2d 510, 512-513 (Fla. 1st DCA), cert. denied 101 So.2d 819 (Fla.1958), this court held that one who failed to move for a directed verdict at the c......
  • Caristi v. State, No. 90-97
    • United States
    • Court of Appeal of Florida (US)
    • April 11, 1991
    ...barred from raising these arguments on this appeal because they were not raised before the trial court. Lee County Oil Co. v. Marshall, 98 So.2d 510 (Fla. 1st DCA 1957). Moreover, these constitutional arguments have repeatedly been held to lack any merit. See, e.g., Barber v. State, 564 So.......
  • Royal Kitchen Cabinet Corp. v. Palcic, No. 58-190
    • United States
    • Court of Appeal of Florida (US)
    • April 21, 1959
    ...cf. Yousko v. Vogt, Fla.1953, 63 So.2d 193; Ippolito v. Brenner, Fla.1954, 72 So.2d 802; Lee County Oil Co. v. Marshall, Fla.App.1957, 98 So.2d 510; Falnes v. Kaplan, supra; Edwards v. Donaldson, Fla.App.1958, 103 So.2d It is true that in law the last clear chance doctrine is not an excepti......
  • James v. Keene, No. 58-647
    • United States
    • Court of Appeal of Florida (US)
    • June 9, 1960
    ...1 Becker v. Blum, 142 Fla. 60, 194 So. 275; Ippolito v. Brenner, Fla.1954, 72 So.2d 802; Lee County Oil Co. v. Marshall, Fla.App.1957, 98 So.2d 510; Falnes v. Kaplan, Fla.1958, 101 So.2d 377; Edwards v. Donaldson, Fla.App.1958, 103 So.2d 256; Gordon v. Cozart, Fla.App.1959, 110 So.2d 2 As s......
  • Request a trial to view additional results

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