London v. Atlantic Mut. Ins. Co., 95-4128

• Decision Date: 12 March 1997
• Docket Number: No. 95-4128,95-4128
• Citation: 689 So.2d 424
• Parties: 22 Fla. L. Weekly D650 Jack LONDON and Trina London, Appellants, v. ATLANTIC MUTUAL INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 424

689 So.2d 424

22 Fla. L. Weekly D650

Jack LONDON and Trina London, Appellants, v. ATLANTIC MUTUAL INSURANCE COMPANY, Appellee.

No. 95-4128.

District Court of Appeal of Florida Fourth District.

March 12, 1997.

The Law Offices of Charles Lipcon, Miami, and Sharon L. Wolfe and Maureen Gallen of Cooper & Wolfe, P.A., Miami, for appellants.

Stephen E. Knoerr and Jacqueline Emanuel of Riley & Knoerr, Fort Lauderdale, for appellee.

KLEIN, Judge.

We withdraw our previously issued opinion and substitute the following in its place.

Although the defendant in this accident case either failed to stop at a stop sign, or stopped and pulled out into oncoming traffic, the jury found that he was not negligent. We conclude that the trial court should have directed a verdict on the issue of defendant's liability and reverse.

Plaintiff testified that he was driving west on Washington Street in Hollywood, and, as he neared the intersection of 48th Avenue, he saw a car approach the stop sign governing 48th Avenue traffic. According to plaintiff, the defendant, who was the driver of that car, ran the stop sign, causing plaintiff's car to strike the left rear of defendant's car. Plaintiff claimed that he was driving within the speed limit and that he had no time to avoid the collision. Defendant's version of the accident differed from that of the plaintiff in that defendant testified he had stopped at the intersection before pulling out. He could not say how far away the plaintiff was when he first saw him. There was no other evidence as to the negligence of either party.

We conclude that the trial court should have granted plaintiff's motion for directed verdict on the issue of defendant's liability. In Walters v. McQueen, 292 So.2d 34 (Fla 1st DCA 1974) the defendant stopped at a stop sign and then "nosed up" five or six feet, resulting in a collision with a motorcycle on the through street. The trial court entered a summary judgment in favor of plaintiff on liability, and the first district affirmed, finding as a matter of law that the proximate cause of the accident was defendant's negligence in proceeding into the intersection in such a manner that made it impossible for plaintiff to avoid the collision.

In the present case plaintiff did not seek a directed verdict on the entire issue of liability, but rather only on the issue of whether the defendant was negligent. We agree that his motion should have been granted, because there was no way that this accident could have occurred without defendant having been negligent. See also MacNeill v. Neal, 253 So.2d 263 (Fla....