Sheehan v. Allred

• Citation: 146 So.2d 760
• Decision Date: 15 November 1962
• Docket Number: No. D-144,D-144
• Parties: George SHEEHAN and Ruth M. Sheehan, his wife, Appellants, v. Renne Emsley ALLRED, John L. Lee and Mahalie Lee, his wife, Appellees.
• Court: Court of Appeal of Florida (US)

Page 760

146 So.2d 760

George SHEEHAN and Ruth M. Sheehan, his wife, Appellants, v. Renne Emsley ALLRED, John L. Lee and Mahalie Lee, his wife, Appellees.

No. D-144.

District Court of Appeal of Florida, First District.

Nov. 15, 1962.

Rehearing Denied Dec. 10, 1962.

Emerson L. Parker, of Parker, Parker & Battaglia, Madeira Beach, and Gilman M. Hammond, Pinellas Park, for appellants.

A. Frank O'Kelley and H. O. Pemberton, of Kenn, O'Kelley & Spitz and W. K. Whitfield, Tallahassee, for appellees.

WIGGINTON, Judge.

This appeal by the plaintiffs in an automobile negligence action is from a final judgment entered upon a jury verdict rendered in favor of the defendants. The principal point on appeal questions the correctness of the trial court's ruling which denied plaintiffs' motion for a directed verdict on the issue of liability at the conclusion of all evidence.

The complaint charges defendants with the negligent operation of their respective motor vehicles on an open state highway whereby defendant Allred's vehicle struck defendant Lees' vehicle from the rear, causing the latter to be propelled into the rear of plaintiffs' vehicle at a time when all three vehicles were traveling in a northerly direction on the highway. Defendants' respective answers to the complaint interpose the defenses of general denial and of contributory negligence.

At the time plaintiffs moved the court for a directed verdict in their favor on the issue of liability, the evidence considered in a light most favorable to defendants revealed the following factual situation. Plaintiff wife was driving her automobile in a northerly direction along a two lane state highway. She was followed by the vehicle owned by defendant John L. Lee then being operated by his wife, Mahalie Lee. Following both of these vehicles was the vehicle owned and operated by defendant Allred. Allred was driving at a faster rate of speed than were the two forward vehicles and as he approached from the rear he attempted to pass them. He turned his vehicle to the left side of the highway preparatory to passing the slower moving vehicles without sounding any warning of his approach and just as he reached the rear of the Lee vehicle the latter likewise attempted to pass plaintiffs' vehicle which was traveling at a slow rate of speed, or had actually come to a stop in the highway. The right front side of the Allred vehicle struck the left rear of the Lee vehicle causing the latter to be propelled into and upon plaintiffs' vehicle resulting in the damages alleged in the complaint. Allred testified he was not forewarned that Lee intended to pass plaintiff, and that had not the Lee vehicle turned to the left and into Allred's lane of traffic the latter would have been able to pass both forward vehicles without difficulty or incident. Mrs. Lee testified that before turning to her left in an attempt to pass plaintiffs' vehicle she looked into her rear view mirror, but did not observe any vehicle approaching from the rear. She stated that had her vehicle not been struck by Allred's vehicle at the moment she attempted to pass plaintiffs' automobile she would have been able to accomplish her intended purpose without difficulty or incident. A disinterested witness, one Metcalf, testified that he was following the Allred car by some three or four hundred yards when he saw Allred move to the left side of the highway to pass the two slower moving vehicles then in the lane of traffic. Metcalf said he saw the brake light on the Sheehan car illuminate some thirty seconds prior to the collision, but that it never came to a halt until after it was struck. He estimated that Allred was some four car lengths behind the Lee vehicle when the latter pulled out of the lane of traffic to pass the Sheehan automobile.

It was on the foregoing state of the evidence that plaintiffs made a 'motion for a directed verdict in their favor on the issue of liability, submitting to the jury for its determination the question of which of the defendants was guilty of negligence that proximately caused the collision, or whether both defendants were jointly guilty of such negligence.' This motion was denied by the trial judge, which denial forms the principal point of this appeal.

Appellees earnestly contend that this court is precluded from considering the foregoing point on appeal for the reason that appellants failed to move for a new trial and procure a ruling thereon, prior to filing their notice of appeal. They cite as authority in support of this position those decisions which hold that assignments of error directed to a verdict or to a judgment entered on or pursuant to a verdict cannot support questions involving consideration of the sufficiency or weight of the evidence unless such questions have first been presented to the trial judge by a motion for new trial and an adverse ruling entered thereon. ¹ We do not consider that the principle of law urged by appellees is applicable to the facts in this case. Appellants do not question the weight of the evidence to support the verdict and judgment. It is their position that there is in this record a complete absence of any evidence from which the jury could have lawfully concluded that the collision in question proximately resulted from any contributory negligence of plaintiffs. This was a point which was raised by plaintiffs' motion for directed verdict on the issue of liability. In ruling adversely to plaintiffs on this motion, the trial judge at that time considered the evidence which had been adduced during the trial and concluded as a matter of law that there was sufficient evidence in the record to support a verdict favorable to defendants. Under these circumstances it was not necessary for plaintiffs to have filed a motion for new trial in order to have the court's ruling on this motion reviewed on appeal. In the Furr case ² this court considered the correctness of a trial court's order granting a directed verdict at the conclusion of the evidence despite the fact that no motion for new trial had been filed by appellant subsequent to the entry of the verdict. In that case this court said:

'On the other hand, when the trial judge has this opportunity in his consideration of a motion for a directed verdict at the close of all of the evidence and exercises the power of directing a verdict on the basis of a legal conclusion as to the sufficiency or insufficiency of the evidence, then his ruling can be reviewed without the necessity of an intervening motion for a new trial.

'The rule appears to be clear that when a trial judge passes upon a motion for a directed verdict at the close of all the evidence he thereby arrives at a conclusion of law rather than of fact. In other words, his judgment is grounded on the proposition that viewing the evidence in its aspects most favorable to the party against whom the verdict is directed, it necessarily follows as a matter of law that such party could not be successful if the evidence were submitted to the jury. The conclusion reached by the trial judge under such circumstances is a conclusion of law resulting from the presence of a state of facts which permits of no other legal result. Warner v. Goding, 91 Fla. 260, 107 So. 406; Greenberg v. Post, 155 Fla. 135, 19 So.2d 714.'

Appellees contend that our ruling in the Furr case is not applicable here for the reason that in Furr the motion for directed verdict was granted, whereas in this case it was denied. We do not perceive that this distinction alters the applicability of the rule to the facts in this case. If it were appellants' contention that the verdict is contrary to the manifest weight of the evidence and the justice of the cause, the sufficiency and weight of such evidence could not be reviewed on this appeal in the absence of a motion for new trial by appellants, and an order denying the same. ³ It is not appellants' position that they should have a new trial because of the foregoing reason, but that the court erred in denying their motion because there is no evidence present in the record which can lawfully support the verdict rendered by the jury in favor of defendants.

We have carefully reviewed the record but fail to find any evidence of negligence attributable to plaintiffs which could have been lawfully found by the jury to be the proximate cause of the collision. Appellees invite attention to the conflicting evidence which tends to show that plaintiff brought her vehicle to a stop on the highway directly in the lane of traffic, thereby making it necessary for each of the defendants to pass her. It is suggested that plaintiff's act of stopping her vehicle in the highway is a violation of the statute and constitutes an act of negligence which bars recovery. ⁴ Even should plaintiff's act of stopping her vehicle in the highway constitute negligence, the evidence affirmatively establishes that such negligence, if any, was not the proximate cause of the collision and the ensuing damages suffered as a result thereof. The Lees testified that they were several hundred feet from plaintiffs' vehicle when they thought it had come to a stop in the highway. They testified that had not their vehicle been struck by Allred from the rear, they would have been able to pass plaintiffs' automobile without difficulty. Of similar import was the testimony adduced by Allred. The jury could not have lawfully concluded that plaintiffs' negligence, if any, contributed to or was the proximate cause of the collision. The only function which the jury could have properly performed under the evidence in this record was to determine whether Allred or Lee, or both, were guilty of the negligent act which proximately caused the collision out of which plaintiffs' damages arose. We reach this conclusion based upon an analysis of the evidence which affirmatively establishes that the collision in question resulted exclusively from an act of negligence committed either by...