Noll v. Byorick, 58-10
| Decision Date | 06 January 1959 |
| Docket Number | No. 58-10,58-10 |
| Citation | 108 So.2d 67 |
| Parties | Edward C. NOLL and Regina C. Noll, his wife, Appellants, v. Martha C. BYORICK and Frank J. Byorick, her husband, Appellees. |
| Court | Florida District Court of Appeals |
Brown, Dean, Adams & Fischer, Miami, for appellants.
Kelner & Lewis and Fred Patrox, Miami, for appellees.
This was a suit for damages brought by a husband and wife for personal injuries allegedy sustained by the wife, a pedestrian, while crossing a street in the City of Miami, Florida. After a trial of the cause, the jury returned the following verdict favorable to the appellees:
'We, the Jury, find for the Plaintiffs, Martha C. Byorick and Frank J. Byorick, her husband, and against the Defendants, Edward C. Noll and Regina C. Noll, and we assess the damages recoverable by the Plaintiff wife at and in the sum of $15,000.00 and damages recoverable by the Plaintiff husband at and in the sum of None, so say we all.'
Subsequent to be entry of the verdict, the appellants made certain post-trial motions and the appellee-husband, also by a post-trial motion, moved for a new trial. The trial judge denied the appellants' posttrial motions, but granted the appellee-husband a new trial on the question of damages alone. Judgment on the verdict was subsequently entered in favor of the appellee-wife. The trial judge, in granting the appellee-husband's motion for new trial, concluded that the verdicts were inconsistent in light of the uncontroverted evidence that the husband had incurred substantial expenses in the hospitalization of his wife, and had suffered the loss of her companionship, society and services. The appellants have appealed from the final judgment and the order granting the appellee-husband a new trial.
The appellants urge as their main contention the alleged error of the trial judge in failing to grant their motion for directed verdict. Their argument in support of this position is that the appelleewife's own testimony demonstrates as a matter of law an utter disregard for her own safety, or contributory negligence. Without delineating the testimony, but considering such testimony, as we must, in the light most favorable to the appellee-wife, we conclude, as did the trial judge, that her actions and conduct did not so clearly demonstrate her own negligence as to warrant the direction of a verdict. We do not intend to infer that there was not some evidence of the appellee-wife's negligence but the testimony as a whole was such, when considered in the light most favorable to her, that reasonable men could draw different conclusions from her actions. It is apparent to us, as it obviously was to the trial judge, that the appellee-wife's conduct, being subject to different interpretations, should have been submitted to a jury to determine if such conduct was the proximate cause of her injuries. See Nelson v. Ziegler, Fla.1956, 89 So.2d 780.
The appellants have raised the additional question of the action of the trial judge in granting a new trial to the appellee-husband on the question of damages alone. The appellants contend that if a new trial was to have been awarded, it should have been as to both app...
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