Paikin v. Beach Cabs, Inc.

• Decision Date: 24 May 1966
• Docket Number: No. 65--781,65--781
• Citation: 187 So.2d 93
• Parties: Esta PAIKIN, Appellant, v. BEACH CABS, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 93

187 So.2d 93

Esta PAIKIN, Appellant, v. BEACH CABS, INC., a Florida corporation, Appellee.

No. 65--781.

District Court of Appeal of Florida, Third District.

May 24, 1966.

Rehearing Denied June 23, 1966.

High, Stack & Davis, Miami, for appellant.

Kastenbaum, Mamber, Gopman, Epstein & Miles, Miami Beach, for appellee.

Before HENDRY, C.J., and PEARSON and CARROLL, JJ.

CARROLL, Judge.

The appellant Esta Paikin filed an action in the circuit court of Dade County against the owner of a taxi cab, seeking damages for personal injuries received by her in a pedestrian-automobile collision, alleging negligence of the driver. The cause was tried before a jury.

Upon failure of the jury to agree the court declared a mistrial. Thereafter on a renewed motion of the defendant the trial court granted a directed verdict for the defendant and entered judgment thereon, ¹ from which the plaintiff has prosecuted this appeal.

The case was submitted to the jury on charges covering negligence, contributory negligence and the doctrine of last clear chance. In granting the defendant's post-trial motion for directed verdict the trial court proceeded on the theory that a charge on last clear chance should not have been given. In so holding the trial court was in error, and we reverse.

The established rule applicable to the consideration of such a motion in the trial court is that the court should not direct a verdict for the defendant unless it is clear that there is no evidence whatever adduced that could in law support a verdict for plaintiff. Section 54.17, Fla.Stat., F.S.A. Johnson v. Louisville & N.R. Co., 59 Fla. 305, 52 So. 195, 196; Bryan v. Loftin, Fla., 51 So.2d 724, 725; Mullis v. City of Miami, Fla., 60 So.2d 174, 176; Chambers v. Loftin, Fla.1953, 67 So.2d 220, 221; Cadore v. Karp, Fla., 91 So.2d 806; Ramsey v. Ivey, Fla.App.1966, 184 So.2d 499, 500.

In Johnson v. Louisville & N.R. Co., supra, after stating the rule as above, the Supreme Court added: 'If the evidence is conflicting, or will admit of different reasonable inferences, or if there is evidence tending to prove the issue, the case should be submitted to the jury for their finding of fact on the evidence, and not taken from them and passed upon by the court as a question of law. (Citing cases) The court should not direct a verdict for one party unless the evidence is such that no view which the jury may lawfully take of it favorable to the other party can be sustained.'

In Chambers v. Loftin, supra, the Supreme Court said:

'The rule laid down by the federal decisions is not so far different from the rule that prevails in our own jurisdiction. For, as stated in the decisions of this Court, a verdict should not be directed in favor of the defendant unless 'it is clear that there is no evidence whatever adduced that could in law support a verdict for plaintiff.' Section 54.17, Florida Statutes 1951, F.S.A. Johnson v. L(ouisville) & N.R. Co., 59 Fla. 305, 52 So. 195, 196; Bryan v. Loftin, Fla., 51 So.2d 724; Mullis v. City of Miami, Fla., 60 So.2d 174. In arriving at a determination whether to grant or deny a directed verdict for the defendant the trial court should interpret the evidence in favor of the plaintiff, giving him the benefit of all intendments and reasonable inferences and deductions. Hardware Mutual Casualty Company v. Tampa Electric Co., Fla., 60 So.2d 179, (40 A.L.R.2d 1293).'

The rule relating to consideration by an appellate court on review of an order granting such a motion for directed verdict, was stated by the Supreme Court in Rodi v. Florida Greyhound Lines, Fla.1953, 62 So.2d 355, 356, as follows:

'In determining such question, this court is required to consider the testimony adduced in the cause in the light most favorable to the plaintiff. Conflicts will be disregarded, and every reasonable intendment deducible from the evidence must be indulged in plaintiff's favor.'

In this connection see also Hardware Mutual Casualty Co. v. Tampa Electric Co., Fla., 60 So.2d 179, 40 A.L.R.2d 1293; Brightwell v. Beem, Fla., 90 So.2d 320, 322; Guhman v. Florida Power & Light Company, Fla.App.1962, 139 So.2d 749, 750.

The facts of this case, viewed in the light favorable to the party moved against in accordance with the latter rule, may be summarized as follows: The plaintiff was an employee in a dress shop in the Fontainebleau Hotel located on Collins Avenue in Miami Beach. In performance of an errand for her employer she proceeded to cross Collins Avenue in front of the hotel, intending to board a bus going south. The avenue runs north and south, and she entered it from the east at a point approximately 100 feet south of a crosswalk. On the side of the avenue reserved for northbound traffic there were three lanes for traffic in addition to a parking lane. The collision occurred in the second traffic lane.

A short time earlier there had been an...