Ruth v. Sorensen

CourtUnited States State Supreme Court of Florida
Writing for the CourtROBERTS; TERRELL
Citation104 So.2d 10
PartiesMyrtie R. RUTH and her husband, William E. Ruth, Appellants, v. Elmer SORENSEN, Appellee.
Decision Date21 March 1958

Page 10

104 So.2d 10
Myrtie R. RUTH and her husband, William E. Ruth, Appellants,
v.
Elmer SORENSEN, Appellee.
Supreme Court of Florida.
March 21, 1958.
Rehearing Denied July 30, 1958.

Page 11

Paul L. Steiner, Miami, for appellants.

Henry Burnett and Fowler, White, Gillen, Yancey & Humkey, Miami, for appellee.

ROBERTS, Justice.

Plaintiff-appellants sued defendant-appellee to recover their respective damages as a result of injuries sustained by the plaintiff wife ('plaintiff' hereafter), when the car she was driving was hit by a car driven by defendant. The cause was submitted to the jury on the question of defendant's negligence, a verdict in favor of defendant was returned, plaintiffs' motion for new trial was denied, and this appeal from a judgment in favor of defendant has been perfected.

The accident occurred on a clear dry day at the intersection of 62nd Street and Northwest 2nd Avenue in Miami. Plaintiff and defendant were travelling in opposite directions on 62nd Street. Plaintiff stopped

Page 12

at the intersection in obedience to the traffic signal, and it was while she was waiting for the light to change that defendant ran into the left front and side of her car. There was considerable traffic at the intersection, including cars on the cross-lane of traffic on Northwest 2nd Avenue. According to defendant's deposition (which was the only evidence adduced in his behalf), he was travelling at about 12 or 15 miles per hour when he came to the intersection and as he reached the crosswalk, the light changed from green to 'caution'. He proceeded into the intersection and, according to his statement, a car in the cross-lane of traffic on Northwest 2nd Avenue 'pulled out in front of me, went through the light-broke the light, and pulled out in front of me, and I swerved to the left to avoid hitting them. Before I could get back to my right side, I glazed off a mudguard of (plaintiff's) automobile.' As to whether there was space in the traffic lane on the right of plaintiff's car (his left) to have gone past her on that side, he said: 'I wouldn't say anything about whether there was space or not. I don't know whether there was. But I swerved to avoid hitting the other car and before I could get her back to the right, I glazed off her mudguard.'

Defendant also testified in his deposition that he did not blow his horn nor apply his brakes; that he did not know how far into the intersection the cross-traffic car had gone at the time he swerved to avoid it, nor how fast the cross-traffic car was travelling; he only knew that it 'jumped' the light after having been at a dead stop. Although he testified positively that the cross-traffic car was not about to hit him, but that he was about to hit the cross-traffic car, in answer to the question, 'Now, did you hit your brake at any time?' he said: 'No. I swerved to avoid him. I couldn't hit the brake, because he was on top of me.'

As noted, defendant could not remember whether there was space in the traffic lane to the right of plaintiff's car which he could have taken and thus avoided 'swerving' around the cross-traffic car, which resulted in the collision with plaintiff's car. But plaintiff testified positively that there was. It was also shown (and this should be fairly obvious from defendant's description of the occurrence) that defendant could have avoided the accident by continuing his left-hand turn into the lane of traffic on Northwest 2nd Avenue not yet occupied by the cross-traffic car previously referred to.

Defendant admittedly suffered from arthritis and walked with a cane; and the police officer who investigated the accident testified that defendant walked in a very stooped position; that his motions were stiff and he had difficulty in walking and in looking from right to left. This witness said 'He would have to twist his body from the hip and try to straighten up,' when he wanted to look at the witness.

The driver of the cross-traffic car involved in the occurrence did not stop, and thus was not joined as a party defendant. But we are unable to see how, under any view that the jury could reasonably take of the occurrence, it could validly find that the driver of the cross-traffic car was solely responsible for defendant's running into plaintiff's car and injuring her. And yet this conclusion is required in order to justify a verdict exonerating the defendant. Regardless of whether the driver of the cross-traffic car was negligent in 'jumping' the light (the only thing shown by this record as chargeable against him or her), the defendant might reasonably have been expected to stop at the intersection rather than enter it on a 'caution' light, in view of his physical disabilities; he might reasonably have been expected to apply his brakes when he saw he was about to hit the cross-traffic car; and, if we take his word for it that he couldn't apply his brakes because the cross-traffic car was 'on top of' him, it might be reasonably expected that he would continue to make the left turn into the clear lane of

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traffic on Northwest 2nd Avenue or continue straight ahead on 62nd Street into the clear lane of traffic on plaintiff's right. And, in our opinion, a verdict absolving defendant from all blame for failing to do any one of these things...

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22 practice notes
  • Pierce v. Lopez, No. 2
    • United States
    • Court of Appeals of Arizona
    • November 24, 1971
    ...a discussion of distinctions between the right to review the sufficiency of evidence in state and federal courts see, Ruth v. Sorensen, 104 So.2d 10 (Fla. 3 It is clear that the duty of the proprietor or operator extends to his duly authorized employee charged with the sole care and control......
  • Centro Nautico Representacoes Nauticas, LDA. v. International Marine Co-op, Ltd., CO-O
    • United States
    • Court of Appeal of Florida (US)
    • October 14, 1998
    ...have us review it. Nordyne, Inc. v. Florida Mobile Home Supply, Inc., 625 So.2d 1283, 1285 (Fla. 1st DCA 1993); see also Ruth v. Sorensen, 104 So.2d 10 (Fla.1958); Southern American Fire Ins. Co. v. Rinzler, 324 So.2d 133 (Fla. 1st DCA 1975); Winnemore v. Morton, 214 So.2d 509 (Fla. 4th DCA......
  • 6551 Collins Ave. Corp. v. Millen
    • United States
    • United States State Supreme Court of Florida
    • July 11, 1958
    ...weight of the evidence, it is in direct conflict with the decision of this court in Ruth v. Sorensen, opinion filed March 21, 1958, 104 So.2d 10. It should also be noted that, insofar as it follows the federal rule of waiver by defendant of a motion for directed verdict made at the close of......
  • State v. Spaziano, No. 87364
    • United States
    • United States State Supreme Court of Florida
    • April 17, 1997
    ...and (26) Donna Yonkin. 2 The common law did not afford litigants a right to appeal certain new trial orders. In Ruth v. Sorensen, 104 So.2d 10, 15 (Fla.1958), we But, as has been noted, the limitation imposed by the Seventh Amendment on federal appellate courts is not applicable to state co......
  • Request a trial to view additional results
22 cases
  • Pierce v. Lopez, No. 2
    • United States
    • Court of Appeals of Arizona
    • November 24, 1971
    ...a discussion of distinctions between the right to review the sufficiency of evidence in state and federal courts see, Ruth v. Sorensen, 104 So.2d 10 (Fla. 3 It is clear that the duty of the proprietor or operator extends to his duly authorized employee charged with the sole care and control......
  • Centro Nautico Representacoes Nauticas, LDA. v. International Marine Co-op, Ltd., CO-O
    • United States
    • Court of Appeal of Florida (US)
    • October 14, 1998
    ...have us review it. Nordyne, Inc. v. Florida Mobile Home Supply, Inc., 625 So.2d 1283, 1285 (Fla. 1st DCA 1993); see also Ruth v. Sorensen, 104 So.2d 10 (Fla.1958); Southern American Fire Ins. Co. v. Rinzler, 324 So.2d 133 (Fla. 1st DCA 1975); Winnemore v. Morton, 214 So.2d 509 (Fla. 4th DCA......
  • State v. Spaziano, No. 87364
    • United States
    • United States State Supreme Court of Florida
    • April 17, 1997
    ...and (26) Donna Yonkin. 2 The common law did not afford litigants a right to appeal certain new trial orders. In Ruth v. Sorensen, 104 So.2d 10, 15 (Fla.1958), we But, as has been noted, the limitation imposed by the Seventh Amendment on federal appellate courts is not applicable to state co......
  • 6551 Collins Ave. Corp. v. Millen
    • United States
    • United States State Supreme Court of Florida
    • July 11, 1958
    ...weight of the evidence, it is in direct conflict with the decision of this court in Ruth v. Sorensen, opinion filed March 21, 1958, 104 So.2d 10. It should also be noted that, insofar as it follows the federal rule of waiver by defendant of a motion for directed verdict made at the close of......
  • Request a trial to view additional results

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