Myers v. Korbly

• Decision Date: 23 April 1958
• Docket Number: No. 295,295
• Citation: 103 So.2d 215
• Parties: Marguerite MYERS, Appellant, v. Richard P. KORBLY, Appellee.
• Court: Florida District Court of Appeals

Page 215

103 So.2d 215

Marguerite MYERS, Appellant, v. Richard P. KORBLY, Appellee.

No. 295.

District Court of Appeal of Florida, Second District.

April 23, 1958.

Rehearing Denied June 12, 1958.

Shackleford, Farrior, Shannon & Stallings, Norman Stallings, James E. Lehan, Tampa, for appellant.

Branch & Goff, Mabry, Reaves, Carlton, Fields & Ward, Edward B. Rood and J. A. McClain, Jr., Tampa, for appellee.

ALLEN, Judge.

This is an appeal from a final judgment, dated April 3, 1957, entered after a jury verdict for plaintiff in a negligence action brought by Richard P. Korbly against Marguerite Myers. The cause arose from an accident occurring when defendant's automobile, driven by her minor son, left a curve on Bayshore Boulevard in Tampa and struck two plam trees, demolishing the automobile and fatally injuring the 17 year old son of the plaintiff, who was a guest in defendant's automobile. Defendant appeals, the parties being referred to herein as they stood before the trial court.

The involved accident occurred between eleven and twelve P.M. on Saturday, March 17, 1956, at a curve on Bayshore Boulevard near Inman Avenue in Tampa. At that location, to the south, Bayshore is a one-way, three lane street. The speed limit was 40 miles per hour. The road surface was dry and the boulevard was well lighted. Defendant's son, who was 16 years of age and had an unrestricted license for only three weeks, was driving defendant's 1956 Ford Sedan southerly on Bayshore Boulevard. With him were five other youths. Plaintiff's son was riding in the front seat nearest the right front door and another boy was also on the front seat sitting between the plaintiff's son and the defendant's son, the driver of the involved automobile. The other three passengers rode in the back seat. The driver entered the boulevard after stopping at a traffic signal and then traveled in a southerly direction for two or three blocks. The car failed to negotiate a curve, after sliding 61 feet to the westerly curb of the roadway, left the boulevard, slid another 76 feet to a palm tree with which it collided, then slid another 6s feet to a second palm tree which was uprooted and broken in two about four feet from its roots.

We have not alluded to the speed of the automobile in the above paragraph, reserving such issue to a subsequent part of this opinion.

This action was brought under the guest statute and therefore, the evidence must be analyzed to determine whether the jury had sufficient evidence to find the defendant's son guilty of gross negligence which is necessary for actionable damages in a guest statute case.

We have examined the excellent briefs and appendices filed by the parties to this cause, and while not necessary, we deemed it advisable to study all the testimony taken before the trial judge to extract the evidence produced by the plaintiff to determine whether or not the jury, if it believed such testimony, could properly return a verdict in favor of the plaintiff on the issue of gross negligence.

J. R. Miller, a patrolman with the Traffic Bureau of the Tampa Police Department (R-24), testified that there were friction marks left by the car as it skidded sideways; and that there were 61 feet of friction marks in the street, an additional 76 feet of friction marks to the first point of impact, and then an additional 61 feet to the point where the car struck the second tree, swung around it and came to rest. The witness identified a number of photographic exhibits, one of which showed the two trees struck by the car. He further testified that there was glass and some chrome from the car that was thrown 108 feet in a northwesterly direction from the final resting place of the car. He also testified that a friction mark is a mark left on a street from the wheels traveling in a sideways direction.

Another witness, William A. Raduns, who was with the defendant's son on the night of the accident in question and at the time of the accident (R-59), testified in part, as follows:

'Q. As you turned left from Bayshore, tell us from then on what happened? A. Well, I believe that we were going at a very high rate of speed down Bayshore. It just happened so quick, we didn't make the curve. We were going on so fast.

'Q. You mean it did not take you long to make the first curve. Did the car continue to pick up speed until you got there? A. Yes.

'Q. Was the radio on? A. Yes.

'Q. When you got to this curve, did you know you were not going to make it? A. Yes.

'Q. Why didn't you warn him? A. It happened so fast, I thought he would slow down but when we got there it was too late.

'Q. Were you looking at the speedometer? A. No.

'Q. What were you doing? A. Just sitting there talking and the radio was going.

'Q. Have you driven in cars like this quite a bit? A. Yes, we have a Ford ourselves.

'Q. Bill, could you make an approximate estimate of the speed the car was going when you went into the curve? A. I could make an approximate estimate.

'Q. Would you tell us, in your opinion, what the speed was without looking at the speedometer? A. I could take a wild guess at about 80 miles an hour or so.

'Q. Eighty? A. That's just a wild guess.

'Q. Have you ever driven that fast before? A. Yes, sir.'

After cross-examination, this witness for the plaintiff again testified (R-64):

'Q. But if you have to estimate it, and you admit it is an estimate, what would you say? A. It is just wild estimate, I took. As a wild guess, I would say 80.

'Q. You admit it is a wild guess. You didn't look at the speedometer at all? A. That's right.

'Q. Would you describe it as an average or a high rate of speed? A. A very high rate of speed.'

James H. Campbell, Assistant Chief of Police of the City of Tampa, testified (R-76) that he was present and participated with Captain Dollar of the Miami Police Department on certain tests that were made on the Bayshore Boulevard at the place where the accident in question had occurred. He testified as follows:

'Q. When he was standing outside, would you tell us the speed on the speedometer as your car went around this curve in question? A. Mr. Rood, there where three different tests. In other words, you have 40 mile an hour limit there. The first time I went I took it at 50, then 60, and then at 65.

'Q. So in this type of car, you made the curve at 65 miles an hour. Did you slip sideways any at 65 miles an hour? A. Yes, sir. There are three lanes there on Bayshore. There is one in the center that divides the other two. Coming into the curve at 65 miles an hour, I was hugging the one next to the island. The car would come out of that lane and almost into the curve before I could get it straightened up.

'Q. That is the way you drove it? A. That is the way the car would go at that speed. You couldn't hold it in that lane.

'Q. You made it at 65? A. Yes, by taking all three lanes.

'Q. You took all three, but there was no friction marks from it slipping sideways when you came back? A. No, although you could hear the tires sliding a little bit, you did not start to slide.

'Q. That's what I mean. The last experiment was at 65 miles an hour? A. Yes.'

There was no cross-examination of Mr. Campbell.

Gene McPherson testified in favor of the defendant and stated that he was in the car at the time of the collision. On cross-examination by the plaintiff (R-110), he was asked the following questions and gave the following answers:

'Q. Mr. McPherson, could you estimate the speed at the time the car reached the curve? A. I couldn't say exactly anywhere around it, but I can tell you we were going over the speed limit, and that is for sure.

'Q. Over what? A. Anywhere around 60, and maybe over. I can't really tell you exactly what we were doing, because I was in the back. When you get around 60, you can't tell exactly how fast you are going.

'Q. Could you say how much over 60 you were going? A. I couldn't tell you.

'Q. When I was asking you if you knew how fast it was going, did you estimate two figures it was between? A. Yes, sir, I said between 60 and 100 miles, meaning I am not sure about any speed, but in between there.

'Q. Actually, all you can guess is that the speed was between 60 and 100. Is that the best you can do? A. I know it was somewhere around 60 or over. That is the best I can do. I can't tell you how fast we were going.'

Plaintiff's exhibit No. 8 depicted Bayshore Boulevard at Inman Avenue showing the curved condition. Plaintiff's exhibit No. 10 showed the palm tree that the car of the defendant sheared off several feet from its base. Plaintiff's exhibits 3, 4 and 5 showed the automobile after the accident. Plaintiff's exhibits No. 2 and No. 17 showed the curves, contours, construction, etc., of Bayshore Boulevard.

We conclude that the foregoing evidence under the hereinafter cited cases sustains the jury's verdict.

The Supreme Court of Florida has held that excessive speed alone, without other factual evidence of negligence, is insufficient to sustain a complaint for gross negligence. Leslie v. West, Fla.1949, 38 So.2d 821.

In the case of Faircloth v. Hill, Fla.1956, 85 So.2d 870, 872, the Court said:

'We have held that all of the circumstances of each case entering into the particular happening must be considered in order to determine whether liability exists. See Dexter v. Green, Fla.1951, 55 So.2d 548. In the same case we held that while each separate act involved in the drama might not in and of itself establish gross negligence, nuvertheless, the entire course of conduct of the automobile driver under all of the circumstances and in the light of all of the related factors taken collectively might well establish the existence of gross negligence by pointing to the conclusion that the driver of the car knew or should have known that his conduct placed others in danger of grave injury and that under all of the circumstances he could be found guilty of a conscious indifference for the safety of others.'

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