Stark v. Vasquez, 33069
| Decision Date | 30 September 1964 |
| Docket Number | No. 33069,33069 |
| Citation | 168 So.2d 140 |
| Parties | Linda Lee STARK and Charles N. Stark, Petitioners, v. Mary VASQUEZ, Respondent. |
| Court | Florida Supreme Court |
Nestor Morales and W. F. Esslinger, Miami, for respondent.
This case is here upon a petition for a writ of certiorari directed to the District Court of Appeal, Third District. Petitioners seek to have this Court review a decision of said District Court of Appeal upon the premise that the decision sought to be reviewed is in direct conflict on the same point of law with the decision of the District Court of Appeal, First District, in the case of Pensacola Transit Co. v. Denton, 119 So.2d 296.
In the present suit, the District Court of Appeal, Third District, reversed the trial judge for submitting to the jury for determination as a matter of fact the question whether the defendant's explanation as to how the rear end collision occurred was sufficient to rebut the presumption of negligence ordained by law in this type of accident. The District Court of Appeal, First District, in the Pensacola Transit Company case reversed the trial judge because he directed a verdict and refused to submit the same question to the jury for its determination. Petitioners take the view that if the controlling question in the Pensacola Transit Co. case was for the jury, the same question in their suit was properly submitted to the jury.
We are compelled to agree with petitioners' contention that the facts in the instant case are so similar to those in the Pensacola Transit Co. suit as to create a conflict. If the decision of the District Court of Appeal, Third District, which is challenged herein were left standing, confusion and inconsistency in the case law of this State would result. In common legal vernacular, the Pensacola Transit Co. decision, when considered in the light of the decision herein assailed, is 'a red cow case.'
We are unable to follow the distinction attempted to be made by the District Court of Appeal, Third District, between this case and that of Pensacola Transit Co. v. Denton.
The difference between the testimony of the bus driver in the Pensacola Transit Co. case and that of Linda Lee Stark in the subject action is inconsequential. Each, if believed by the jury, had a reasonable explanation of circumstances and conclusions explanation of circumstances and conditions used normal precaution.
The real question presented is whether the Circuit Judge erred in submitting to the jury for its dettermination the query whether as a matter of fact Linda Lee Stark's explanation as to how the accident occurred was sufficient to rebut the presumption of negligence which arose because of the rear end collision.
We turn now to a discussion of the similarity of, and the slight difference in, the testimony of the defendants at the trial level in this case and in the Pensacola Transit Co. action. Both accidents were rear end collisions. Both defendants were faced at the trial with the presumption of negligence which arose because of the nature of the accidents. The defendant driver in the Pensacola Transit Co. suit testified in essence that he applied his brakes normally, and they did not hold. He let up on his 'brake clutch' again and reapplied his brake and 'it still didn't hold.' He looked for a place to go but there was a line of traffic on his left and a utility pole on his right, consequently he could not turn right or left and he hit the car directly in front of him.
Linda Lee Stark testified there (Italics supplied.) It is true that at this juncture, in answer to the question, 'did you jam on your brakes at that point?' she replied, 'Yes, Sir.'
In the Pensacola Transit case and in the present suit the brakes on both vehicles operated by the defendants were checked immediately after each accident and in both instances were found to be in working order.
We hold the view that the District Court of Appeal, Third District, in this suit laid too much emphasis upon the fact that Linda Lee Stark testified, in answer to the aforementioned question, that she jammed on her brakes when she was approximately two car-lengths behind the car which she hit. She previously testified that she had decelerated when she was at least six carlengths behind the vehicle with which she collided. On cross-examination she was asked the following questions and gave the following answers:
'Q. Why did you wait--never mind. I withdraw the question. In other words, you waited until you were two car lengths away before you put your brakes on, put on your brakes?
'A. Yes, sir; because I had decelerated to such a low speed. (Italics...
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Kuvin v. City of Coral Gables, 3D05–2845.
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