McNulty v. Cusack, 58

• Decision Date: 29 August 1958
• Docket Number: No. 58,58
• Parties: F. Jerome McNULTY, Appellant, v. Annie B. CUSACK, Appellee.
• Court: Florida District Court of Appeals

Page 785

104 So.2d 785

F. Jerome McNULTY, Appellant, v. Annie B. CUSACK, Appellee.

No. 58.

District Court of Appeal of Florida, Second District.

Aug. 29, 1958.

Jones, Adams, Paine & Foster, Samuel H. Adams, West Palm Beach, for appellant.

John E. Bollinger, Hamilton, Nason & Butler, Edgar G. Hamilton, West Palm Beach, for appellee.

ALLEN, Acting Chief Judge.

This is an appeal from a final judgment in a negligence action, entered after a directed verdict for plaintiff as to liability. Annie B. Cusack sued F. Jerome McNulty as the result of a rear-end collision between a car driven by plaintiff and another driven by defendant. Defendant's car ran into the rear of plaintiff's car at an intersection. The jury brought in a verdict for plaintiff in the amount of $16,000.

The appellee has filed a motion to strike appellant's brief, motion to dismiss the appeal and a motion to affirm the judgment; all motions pertaining to the fact that no appendix was filed and attached to appellant's brief. Due to the novelty of the question presented by this appeal, the court deems it advisable to deny the three motions, above, since we shall affirm the lower court for the reasons hereinafter stated.

We state the principal question involved here as follows:

'Whether the showing of a rear-end collision and the circumstances under which it occurred, in the absence of explanation, gives rise to a presumption of negligence so as to authorize a directed verdict, or whether it only gives rise to an inference of negligence sufficient for presentation to the jury.'

There is a split of authority on whether or not a rear-end collision, coupled with circumstances under which it occurs, gives rise to an inference or a presumption of negligence. The following authorities hold that a presumption arises and that the burden of going forward with the evidence is on the person who ran into the preceding car from the rear: Douglas v. Silvia, 1935, 55 R.I. 260, 180 A. 359; Muhleisen v. Eberhardt, La.App.1945, 21 So.2d 235; Crochet v. A. & P. Truck Lines, La.App.1951, 52 So.2d 265; and Nielsen v. Pyles, 1944, 322 Ill.App. 574, 54 N.E.2d 753.

The Rhode Island court, in the case of Douglas v. Silvia, supra, said:

'We agree with the rule established by the cases of O'Donnell v. United Electric Rys. Co., 48 R.I. 18, 134 A. 642 and Riccio v. Ginsberg, 49 R.I. 32, 139 A. 652, 62 A.L.R. 967, that proof of a rear-end collision makes a prima facie case of negligence against the driver of the car in the rear. This does not mean, however, that the driver of an automobile which is following another is to be held liable under all conditions and irrespective of existing circumstances. When a prima facie case is made out by proving that the plaintiff was damaged in a rearend collision, the duty of going forward with evidence of due care falls upon the defendant. If the testimony then shows a conflict of evidence from which different conclusions may reasonably be drawn by ordinarily prudent persons, then the question becomes one of fact for the jury to determine under proper instructions from the court. The burden of proof in such a case still remains with the plaintiff.'

In the case of Muhleisen v. Eberhardt, supra, it was said (21 So.2d 236):

'It will be seen from the statement of the pleadings in the case that the main question presented to us for determination is one of fact and, since the defendant admits that his truck ran into the rear of the Muhleisen car in broad daylight while it was stopped upon the roadway, the burden of proof was upon him to show that his driver was free from fault. * * *'

The case of Harvey v. Borg, 1934, 218 Iowa 1228, 257 N.W. 190, 193, indicates the logic of those cases which hold that only an inference of neglect arises from the fact that a rear-end collision occurred and, therefore, it becomes a matter for the jury.

In Harvey v. Borg, supra, the Supreme Court of Iowa said:

'It is universally agreed that no inference of negligence arises from the mere fact that a collision occurred. A collision of two motor vehicles might result without negligence upon the part of the operator of either of them. The facts and circumstances surrounding the occurrence must be considered. It is certainly the general rule that a truck driven by a careful and prudent driver would not ordinarily crash with the rear of a forward moving vehicle of any kind. The inference recognized in such cases is by no means conclusive and may be readily dissipated by an explanation on te part of the party causing the injuries by evidence in the usual way. Appellant did not see fit to offer any explanation or to present testimony in their behalf. Appellee made out a prima facie case of negligence, and, in the absence of explanation on the part of defendant or of other evidence, an issue was presented for the jury.'

See also Wright v. Clausen, 253 Ky. 498, 69 S.W.2d 1062, 104 A.L.R. 480, and Meek v. Allen, 1948, 162 Pa.Super. 495, 58 A.2d 370.

In the case of Townsend Sash Door & Lumber Company v. Silas, Fla.1955, 82 So.2d 158, 160, which involved the so-called 'range of vision rule', Mr. Justice Thornal, in a special concurring opinion, said:

'We further point out that in the cases, relied upon by the appellant and cited above, the Court considered all of the attendant and related circumstances and came to the conclusion that in view of such circumstances the injuried party was guilty of contributory negligence as a matter of law because of the fact that the evidence on the subject was undisputed. In none of the cases did the Court go astray of the established rule that where the evidence is in conflict or where reasonable minds might differ as to the conclusions and appropriate inferences to be drawn therefrom, the problem of resolving the doubts and conflicts is the responsibility of the jury. Whether the driver of an automobile has maintained adequate control of his vehicle within the range of his vision as required by the peculiar circumstances of each particular case is a question of fact to be weighed and considered by the jury, unless there is no conflict on the subject as was determined in the three cases cited. The so-called 'range of vision rule' is actually no different from any other rule of conduct imposed by law upon the operators of motor vehicles. If the evidence is undisputed, the question of negligence or contributory negligence becomes one of law. If the evidence is in dispute and presents to the minds of reasonable men potentially different conclusions and inferences in the light of the circumstances of a particular case, then the problem of resolving the conflicts is the responsibility of the jury.'

The record shows that the sole testimony as to negligence in the case was that of the plaintiff. Afte...