Parker v. Perfection Co-op. Dairies

• Decision Date: 05 February 1958
• Docket Number: Nos. 271,272,s. 271
• Parties: Lucille Beall PARKER, as Administratrix of the Estate of Albert William Parker, Sr., Deceased, Appellant, v. PERFECTION COOPERATIVE DAIRIES, a Florida corporation, and Rufus E. Sullivan and Emery W. Ryan, Appellees. Albert William PARKER, Jr., by his next friend, Lucille Beall Parker, Appellant, v. PERFECTION COOPERATIVE DAIRIES, a Florida corporation, and Rufus E. Sullivan and Emery W. Ryan, Appellees.
• Court: Florida District Court of Appeals

Page 645

102 So.2d 645

Lucille Beall PARKER, as Administratrix of the Estate of Albert William Parker, Sr., Deceased, Appellant, v. PERFECTION COOPERATIVE DAIRIES, a Florida corporation, and Rufus E. Sullivan and Emery W. Ryan, Appellees.

Albert William PARKER, Jr., by his next friend, Lucille Beall Parker, Appellant, v. PERFECTION COOPERATIVE DAIRIES, a Florida corporation, and Rufus E. Sullivan and Emery W. Ryan, Appellees.

Nos. 271, 272.

District Court of Appeal of Florida, Second District.

Feb. 5, 1958.

Rehearings Denied May 26, 1958.

Smith & Tipton, S. Victor Tipton, Orlando, for appellants.

Maguire, Voorhis & Wells, Alton G. Pitts, Orlando, for appellees.

ALLEN, Acting Chief Judge.

This is an appeal from a final judgment entered in two actions at law for negligence, which were consolidated for trial below. The actions arose out of a collision between a car driven by Albert William Parker, Jr., and a truck owned by the defendant dairy, and driven or controlled by defendant Ryan. Ryan was helping defendant Sullivan, an employee of defendant dairy, make deliveries on Sullivan's milk route. There was a jury verdict of not guilty. Plaintiffs appeal, the parties being referred to herein as they stood before the trial court.

The appellants' first question involves the court's ruling, over the objection of the plaintiffs, which allowed testimony that the father of the driver of the automobile paid a $10 fine to the municipal court of the City of Winter Park, Florida, arising out of a charge of excessive speed made against Albert William Parker, Jr., one of the plaintiffs below.

There was introduced in evidence an ordinance of the City of Winter Park, which provided that a speed in excess of 25 miles per hour would be prima facie evidence of reckless driving. The testimony which was objected to by the plaintiff below, was apparently introduced as an admission that the plaintiff-driver was exceeding the speed limit at the time of the collision. The driver Albert William Parker, Jr., admitted at the trial that he was exceeding the speed limit, so if there was error in the admission of the testimony, it was harmless error. Pensacola & A. R. Co. v. Anderson, 26 Fla. 425, 8 So. 127.

The plaintiffs also complained of the refusal of the lower court to permit a member of the Orlando Police Department to testify as to the probable speed or category of speed of the Parker automobile just prior to the involved collision, basing his opinion on his experience and on certain facts stated in the question.

We are familiar with the opinion of the Supreme Court in the case of Kerr v. Caraway, Fla.1955, 78 So.2d 571, 572, to the effect that a police officer qualified as an expert relative to stopping distances and skid marks, etc. The trial court has the burden of determining whether or not the purported expert has the experience, training, etc. to testify as an expert, and in addition thereto, whether there are sufficient known facts from which the expert in question would be able to give an opinion that would assist the jury in its determination of the questions involved in the case. It has been held that a trial court's determination as to whether a proposed expert witness possesses the proper qualifications is conclusive unless it appears from the record to have been clearly erroneous or founded upon error in law. Tully v. State, 69 Fla. 662, 68 So. 934; Kersey v. State, 73 Fla. 832, 74 So. 983; Bratt v. Western Air Lines, 10 Cir., 155 F.2d 850, 166 A.L.R. 1067. We are of the opinion in this case that the lower court was correct in his refusal to permit the witness to testify.

The plaintiffs also assigned as error the giving of the defendants' requested instruction No. 19 on the subject of the doctrine of last clear chance. Defendants' requested instruction No. 19, as actually given by the Judge, was as follows:

'If you find that Albert Parker was negligent in driving the car as he was, and you find that his negligence continued on to the collision, then you will not apply the doctrine of last clear chance unless you find that after Emery Ryan actually saw the car, he had a clear opportunity to avoid the collision by the use of ordinary care.'

In the case of Merchants' Transp. Co. v. Daniel, 1933, 109 Fla. 496, 149 So. 401, 404, the Court said:

'The last clear chance rule is not to be confused with the doctrine of comparative negligence. The latter doctrine (comparative negligence rule) is not recognized in Florida, except in certain special cases by statute. Neither is the doctrine of last clear chance appplicable where the negligence of each party is concurrent. * * * Last clear chance implies thought, appreciation, mental direction, and the lapse of sufficient time to effectually act upon the impulse to save another from injury, or proof of circumstances which will put the one charged to implied notice of the situation. Hartley v. Lasater, 96 Wash. 407, 165 P. 106.

'Defendant, had it so requested, would have been entitled to a charge that, if simultaneously with defendant's negligence the deceased had a chance to escape the injury by himself exercising ordinary diligence, and did nothing to extricate himself from danger, the doctrine of 'last clear chance' would not apply. This is so because in that case deceased would have been guilty of concurrent negligence,...