Rosenfeld v. Knowlton
| Decision Date | 24 March 1959 |
| Docket Number | No. 58-298,58-298 |
| Citation | 110 So.2d 90 |
| Parties | Charles ROSENFELD and Mary E. Rosenfeld, Appellants, v. Arthur KNOWLTON, Appellee. |
| Court | Florida District Court of Appeals |
Dixon, DeJarnette, Bradford & Williams and Warren D. Hamann, Miami, for appellants.
Nichols, Gaither, Green, Frates & Beckham, Miami, for appellee.
This appeal is from a final judgment, favorable to the plaintiff-appellee, rendered after a jury verdict in a personal injury action. Prior to the jury verdict and judgment, the court, upon the plaintiff's motion, had directed a verdict in favor of the plaintiff upon the issue of liability. The cause then went to the jury on the issue of damages only. On appeal, the defendant-appellants challenge the trial court's application of the doctrine of last clear chance in directing a verdict for the plaintiff upon the issue of liability, and the denial of the defendants' motions for directed verdict as well as their post-trial motion.
Arthur Knowlton, plaintiff below, was a tourist in the Miami area. After visiting with friends, Knowlton and his wife were attempting to return to their motel late at night when they became momentarily confused and lost their bearings. Proceeding south on Douglas Road, Knowlton spotted a street sign under a light on the east side of Douglas Road where it intersects with S.W. 17th Street. Knowlton pulled his auto off Douglas Road on the west side and walked across to the east side to determine his location. After examining the street sign, Knowlton started back across Douglas Road, whereupon he was struck by an automobile driven in a northerly direction by the defendant, Rosenfeld. The record discloses without dispute that the plaintiff was hit approximately eight or nine feet from the east edge of Douglas Road. He testified that the never saw the automobile driven by Rosenfeld. Rosenfeld testified that he did not see the plaintiff until he was just in front of the car to the right. The police report indicates that the defendant did not apply his brakes until after the impact. By measuring the length of the skid marks, it was ascertained that the defendant had been travelling slightly in excess of 30 miles per hour in a 30 mile-perhour zone.
The plaintiff's case consisted of testimony by the investigating officer, an expert witness in the field of traffic analysis, the plaintiff and his wife, and the defendant. After the plaintiff rested his case, the defendant moved for a directed verdict, which was denied. Without putting on any testimony or presenting any evidence, the defendant rested and again moved for a directed verdict upon the sole ground that the only verdict consistent with the law and evidence would be one for the defendant. This motion was likewise denied. The plaintiff thereupon moved for a directed verdict on the issue of liability. The basis of plaintiff's motion was that there was no question of the defendant's negligence, and, assuming but not conceding the contributory negligence of the plaintiff, the defendant had the last clear chance to avoid the accident. Assuming the contributory negligence of the plaintiff, the trial judge then concluded that the evidence offered by the plaintiff, when viewed in a light most favorable to the defendant, could only support a verdict for the plaintiff under the theory that the defendant should have perceived the perilous position of the plaintiff and avoided the accident. Accordingly, the plaintiff's motion was granted and verdict directed upon the issue of liability.
In substance, the trial judge held upon the issue of liability that the state of the record could support only one verdict by the jury, and that would be for the plaintiff.
Admittedly, there was no conflict in the evidence. The plaintiff contends that since the defendant...
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Connolly v. Steakley, 33710
...Co. v. Du Vernoy, 1948, 159 Fla. 890, 33 So.2d 48; Poindexter v. Seaboard Air Line R. Co., Fla.1951, 56 So.2d 905; Rosenfeld v. Knowlton, Fla.App.1959, 110 So.2d 90; Royal Kitchen Cabinet Corp. v. Palcic, Fla.App.1959, 111 So.2d 42; Huff v. Belcastro, Fla.App.1961, 127 So.2d 476; Holdsworth......
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Royal Kitchen Cabinet Corp. v. Palcic, 58-190
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Holdsworth v. Crews, 1932
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