McQueen v. Atlantic Truck Service, Inc.
| Decision Date | 07 November 1968 |
| Docket Number | No. K--9,K--9 |
| Citation | 215 So.2d 325 |
| Parties | Cheri Ann McQUEEN, a minor, by her next friend and mother, Virginia McQueen, Appellants, v. ATLANTIC TRUCK SERVICE, INC., a corporation, Appellee. |
| Court | Florida District Court of Appeals |
James C. Handly, Jr., and S. Perry Penland, Jacksonville, for appellants.
Steven A. Werber and Jack F. Wayman, Jacksonville, for appellee.
Plaintiffs have appealed a final judgment rendered in favor of defendant on its post-trial motion in accordance with its motion for a directed verdict made at the conclusion of the evidence.
Plaintiffs sued defendant for damages sustained as a result of defendant's negligent operation of its motor vehicle as a consequence of which it ran into and against a bicycle on which the minor plaintiff was riding, causing her to be thrown to the pavement and injured. Defendant pleaded general denial and contributory negligence as its defenses to the action. At the conclusion of the evidence defendant moved for a directed verdict, which was denied. The jury retired and returned a verdict in favor of plaintiffs to which defendant filed its motion for judgment in accordance with its previous motion for directed verdict, and for a new trial. The court granted only the motion for judgment upon which it entered final judgment in favor of defendant. The court did not rule upon defendant's motion for a new trial.
The evidence adduced by the plaintiffs, when considered in a light most favorable to them, reveals the following facts and inferences. Plaintiff seven-year-old child was riding her bicycle east on a paved street in the City of Jacksonville at a point approximately three feet north of the south edge of the street. Defendant's driver operating its tractor-trailer in an easterly direction approached plaintiff from the rear and as it attempted to pass, the right rear wheel of the tractor struck the left handlebar of the bicycle on which plaintiff was riding, causing her to be thrown to the pavement resulting in serious personal injuries. From these facts the jury could properly have inferred that defendant's driver either negligently failed to keep a proper lookout ahead, failed to observe the position of plaintiff riding her bicycle along the right-hand edge of the roadway and failed to take such evasive action as was necessary to void colliding with plaintiff, or that it negligently drove its vehicle so close to the bicycle on which plaintiff was riding as to cause the right rear wheel of the tractor to collide with and engage the left handlebar of plaintiff's bicycle causing it to be thrown to the ground.
Defendant sought to impeach the testimony of plaintiffs' principal witness by showing a discrepancy between his trial testimony and the testimony he gave in a deposition prior to trial. Defendant also sought to prove by another eyewitness that the minor plaintiff rode her bicycle out of the driveway of a filling station on the south side of the street into the side of the tractor-trailer unit operated by defendant's driver, and that the latter was free from fault. It was wholly within the province of the jury to pass upon the credibility of the witnesses and to decide which witnesses it would believe and which ones it would not. The credibility of witnesses and the weight of the testimony is exclusively a jury function, and not one to be performed by the trial court in passing upon a motion for directed verdict or for judgment in accordance therewith.
In commenting upon the law applicable to the factual situation we find to exist in the case sub judice, this court in the case of Love v. Adams 1 said:
'The principles to be applied in disposing of a motion for a judgment notwithstanding the jury verdict are well established in Florida. In Smith v. Peninsular Life Insurance Co., 181 So.2d 212, 19 A.L.R.3d 1326 (Fla.App.1966), we quoted with express approval the following statement of those...
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Bilams v. Metropolitan Transit Authority
...Clark v. Lowe, 261 So.2d 567 (Fla. 4th DCA 1972); Mackey v. Arnold, 242 So.2d 754 (Fla. 4th DCA 1970); cf. McQueen v. Atlantic Truck Service, Inc., 215 So.2d 325 (Fla. 1st DCA 1968). In this court, the appellant has all but conceded that Leon was guilty of at least some contributory neglige......
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Thompson v. Jacobs, U--435
...be reasonably drawn from the evidence as a whole. (See Nelson v. Ziegler, Sup.Ct.Fla.1956, 89 So.2d 780 and McQueen v. Atlantic Truck Service, Inc., Fla.App.1st 1968, 215 So.2d 325) The test to be applied in a determination of sufficiency of the evidence is whether the record reveals some b......
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Kilburn v. Davenport, 73-188
...1960, 122 So.2d 480; McCloskey v. Louisville & Nashville Railroad Company, Fla.App. 1960, 122 So.2d 481; McQueen v. Atlantic Truck Service, Inc., Fla.App. 1968, 215 So.2d 325; Warriner v. Ramirez, Fla.App. 1973, 280 So.2d We feel constrained to add that the purpose of joining a motion for d......
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Goodstein v. Gary Fronrath Chevrolet, Inc., s. 84-107
...a jury may make the determinations upon authority of Miami Paper Co. v. Johnston, 58 So.2d 869 (Fla.1952); McQueen v. Atlantic Truck Service, Inc., 215 So.2d 325 (Fla. 1st DCA 1968); Mathis v. Lambert, 274 So.2d 601 (Fla. 3d DCA 1973); and Bilams v. Metropolitan Transit Authority, 371 So.2d......