Pahucki v. Armster

• Citation: 161 So.2d 719
• Decision Date: 18 March 1964
• Docket Number: No. 4075,4075
• Parties: Anna F. PAHUCKI, and Barney Pahucki, for himself individually and as a natural guardian and next friend to Delores Pahucki, a minor, Appellants, v. Elder ARMSTER, Appellee.
• Court: Court of Appeal of Florida (US)

Page 719

161 So.2d 719

Anna F. PAHUCKI, and Barney Pahucki, for himself individually and as a natural guardian and next friend to Delores Pahucki, a minor, Appellants, v. Elder ARMSTER, Appellee.

No. 4075.

District Court of Appeal of Florida, Second District.

March 18, 1964.

Robert R. Tench, of Tench & Whitehurst, Clearwater, for appellants.

Kenneth A. Sunne, of Law Office of Robert W. Wilson, Clearwater, for appellee.

PER CURIAM.

Plaintiffs appeal a final judgment entered on directed verdict for the defendant at the conclusion of plaintiffs' case in a negligence action. The case was submitted on testimony supplementing an agreed statement which reads as follows:

'On October 16, 1961, at 7:55 P.M., in the City of Clearwater, the Defendant, Elder Armster, was traveling east on Drew Street, in a 1961 four-door Cadillac Sedan owned and operated by him. With him were his wife, Iva Armster, and three passengers, Naomi Edwards, Gertrude Fowler and Augustus Fowler.

'The Plaintiff, Anna Pahucki, was operating a 1956 four-door Chevrolet Sedan, owned by her husband, Barney Pahucki. Mrs. Anna Pahucki, the Plaintiff, had picked up her daughter, Delores Pahucki, at 1884 Drew Street, and her vehicle was located in the private parking area on the north side of Drew Street.

'Drew Street is a four lane paved road, 39' 3"" wide, with two lanes running east and two lanes running west. These east-west lanes are separated by double yellow lines. The street is illuminated by street lights and is a business area. Driveways lead from the parking area to Drew Street. The roads were dry and the sky clear.

'The Plaintiff's vehicle entered Drew Street from the north side, crossing the west bound lanes and proceeded to make a left turn into the east bound lane closest to the center line The Defendant was traveling east on Drew Street as the Plaintiff's vehicle entered Drew Street. The Defendant applied his brakes but the left front fender of the Defendant's vehicle struck the right rear fender and door of the Plaintiff's car, causing Plaintiff's car to swerve to the left and to the right, coming to a stop, facing southeast in the east lanes of Drew Street. Defendant's vehicle came to a stop facing southeast in the east bound lanes of traffic.

'The Plaintiff charges the Defendant with liability for this accident by reason of his careless operation of his vehicle, claiming that the Defendant was traveling at an excessive rate of speed, failed to have his vehicle under proper control, and did change lanes of traffic prior to the collision. The Plaintiff further claims that the Defendant had time to avoid the collision, but did not do so.

'The Defendant denies liability for the accident by denying that he changed lanes; that he did not have his vehicle under control; and was traveling at an excessive rate of speed, and further claims that the Plaintiff entered the street from a private road, seeing and knowing of the Defendant's approaching vehicle, thus causing the collision. Defendant further states that at the time of the entrance of Plaintiff's vehicle into the flow of traffic, there was no possible way for the Defendant to avoid the accident.

'The Plaintiff, Barney Pahucki, the owner of the vehicle, is claiming property damage in the amount of $380.00, as well as damages for injury to his daughter, Delores Pahucki, and loss of comfort and services of his wife, Anna Pahucki, as a result of the accident. The Plaintiff, Anna Pahucki, is claiming damages for injuries sustained by her as a result of the accident.

'The Defendant, Elder Armster, admits the property damage to the Plaintiff's Barney Pahucki car, in the amount of $380.00, but denies that he is liable therefor. The Defendant further denise liability for this accident and for damages or injuries suffered by any of the Plaintiffs by reason of this accident.

'The questions for you, the jury, to decide in this matter are simple:

'1. Were the acts alone of the Defendant, Elder Armster, the cause of the accident?

'2. Were the acts of the Plaintiff, Anna Pahucki, the cause of the accident?

'3. Did the acts of the Plaintiff, Anna Pahucki, materially contribute to the cause of the accident?

'4. Even if the acts of the Plaintiff Anna Pahucki, materially contributed to the cause of the accident, was the defendant, Elder Armster, able to avoid the accident?

'If the Defendant was the sole cause of the accident, then you must find for the Plaintiff. If the Plaintiff materially contributed to the cause of the accident, you must find for the Defendant, unless the doctrine of Last Clear Chance applies, and he could have avoided the accident thereby.

'If you, the jury, find for the Plaintiff, it is for you to decide to what extent the Plaintiffs were injured as a result of the accident, and what sum would reasonably compensate for...