Manganelli v. Covington, 58-720
| Decision Date | 13 August 1959 |
| Docket Number | No. 58-720,58-720 |
| Citation | 114 So.2d 320 |
| Parties | Alfonso MANGANELLI, Jr., a minor, by and through Alfonso Manganelli, his father and next friend, and Alfonso Manganelli, Appellants, v. Ann Dagenhart COVINGTON and R. A. Morrison, Appellees. |
| Court | Florida District Court of Appeals |
Richard E. Thomas, Miami, for appellants.
Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, for appellees.
This appeal is from a judgment of involuntary nonsuit taken by the plaintiffs after the court announced its intention to direct a verdict for the defendants. The plaintiff, a minor, brought this action against George Makepeace, Ann Covington, and R. A. Morrison. During the course of the trial, the plaintiff took a voluntary nonsuit against the defendant, Makepeace, who is no longer a party to this action. The voluntary nonsuit resulted from a settlement between Makepeace and the plaintiff.
On September 14, 1957, the plaintiff was crossing S.W. 8th Street near S.W. 43rd Avenue. He was proceeding on foot from the south side to the north. The record discloses that he had paused just short of the center line when he was struck by an automobile driven by George Makepeace, proceeding in an easterly direction. The impact threw the plaintiff up on the fender of the Makepeace automobile and eventually deposited him in the westbound lane of traffic on S.W. 8th Street. About the same time, an automobile driven by Ann Covington and owned by R. A. Morrison was proceeding in a westerly direction on S.W. 8th Street. The plaintiff's contention is that the Covington automobile struck him after his impact with the Makepeace car. As a result of this alleged factual situation, the plaintiff urges that there was sufficient evidence of the defendant's negligence adduced at the trial as would preclude the direction of a verdict. The acts of negligence which the plaintiff says were sufficiently demonstrated by the evidence are (1) the defendant Covington's failure to see the plaintiff in a position of peril; (2) the defendant's operation of the automobile with bright lights; and (3) exceeding the lawful speed limit.
We are well aware of the rule that precludes the direction of a verdict when the evidence is in dispute as to material issues of fact and where there is some reasonable basis upon which the jury could predicate a verdict for the party moved against. However, in applying that rule, we must also exclude the application of the converse rule which requires the direction of a verdict when no evidence is submitted upon which a jury could lawfully find a verdict. See Swilley v. Economy Cab Co. of Jacksonville, Fla., 1951, 56 So.2d 914, and Gilmer v. Rubin, Fla.App., 1958, 98 So.2d 367.
As was previously noted, settlement was reached with Makepeace during the course of the trial, which released him from any further liability to the plaintiff. The liability of Makepeace extended to injuries caused by the original impact and to injuries, if any, caused by the alleged impact with the Covington automobile. See Prosser, Torts, § 45, p. 230; 2 Harper & James, Torts, § 20.3, p. 1124. Therefore, the only claim of the plaintiff against Covington and Morrison would be for injuries which resulted from the second impact wherein the concurring acts of Makepeace and Covington were the proximate...
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City of Miami v. Nelson, 65-513.
...613; Golden v. Morris, Fla. 1951, 55 So.2d 714; Swilley v. Economy Cab Co. of Jacksonville, Fla. 1951, 56 So.2d 914; Manganelli v. Covington, Fla. App. 1959, 114 So.2d 320; § 54.17, Fla. Stat., F.S.A. This matter is returned to the trial court, with directions to enter a judgment for the Re......
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...Fla. 1951, 56 So.2d 914; Gilmer v. Rubin, Fla.App.1958, 98 So.2d 367; Traurig v. Spear, Fla.App.1958, 102 So.2d 165; Manganelli v. Covington, Fla.App.1959, 114 So.2d 320. Upon a careful review of the record and application of the principles stated, we conclude that the able trial judge was ......
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