Stephens v. Dichtenmueller, 1101

• Decision Date: 13 March 1968
• Docket Number: No. 1101,1101
• Citation: 207 So.2d 718
• Parties: Valarie V. STEPHENS, Appellant, v. Hugo DICHTENMUELLER, Individually, and d/b/a Fort Lauderdale Grocery Co., and Major C. Washington, Appellees.
• Court: Florida District Court of Appeals

Page 718

207 So.2d 718

Valarie V. STEPHENS, Appellant, v. Hugo DICHTENMUELLER, Individually, and d/b/a Fort Lauderdale Grocery Co., and Major C. Washington, Appellees.

No. 1101.

District Court of Appeal of Florida, Fourth District.

March 13, 1968.

Larry Klein, of Cone, Wagner, Nugent, Johnson, McKeown & Dell, West Palm Beach, for appellant.

Burl F. George, of Carey, Dwyer, Austin, Cole & Selwood, Fort Lauderdale, for appellees.

REED, Judge.

The appellant, Valarie V. Stephens, was the plaintiff, and appellees, Hugo Dichtenmueller and Major C. Washington, were the defendants in the trial court.

The plaintiff filed a complaint under the wrongful death statute, Chapter 768, F.S. 1965, F.S.A. in the Circuit Court for Broward County, Florida, on 15 April 1966 in which she alleged that on 5 January 1965 the defendant Major C. Washington negligently drove a van type truck owned by the defendant Hugo Dichtenmueller onto a highway and into the path of a motorcycle operated by the plaintiff's husband, Howard Edward Stephens, in a westerly direction and caused a collision between the two vehicles which resulted in the death of the plaintiff's husband. At the time of the accident the defendant Major C. Washington was allegedly the agent or employee of the defendant Hugo Dichtenmueller.

The answer of the defendants denied the allegations of negligence and alleged that the deceased was guilty of negligence in the operation of the motorcycle, which was the sole or a contributing proximate cause of the collision.

The defendants filed a motion for summary judgment which was granted and a summary final judgment was entered in favor of the defendants on 19 September 1966. The plaintiff appeals from this summary final judgment.

Because of our conclusion, the only point presented by the plaintiff which will be discussed is the propriety of the trial court's order granting the motion for summary judgment and the entry of the summary final judgment.

The motion for summary judgment was supported by the deposition of the defendant Major C. Washington and one Henry Miller who at the time of the accident was a passenger in the truck and an employee of the defendant Dichtenmueller. The deposition of Major C. Washington indicates that just prior to the accident he had been driving the truck west on a state road in Broward County, Florida. He stopped at a grocery store on the south side of the road for the purpose of making a delivery of groceries to the store. Defendant Washington pulled the truck off the road and backed it up to the store to facilitate the unloading of the groceries.

According to the depositions, the road at the location of the store was two lanes and straight in both directions.

Defendant Washington testified that after the delivery was made he pulled the truck up to the edge of the highway and looked to the east. He also testified that his passenger who was serving as his helper stood on the right hand running board of the truck and looked to the east. Defendant Washington testified that after looking both ways he pulled out onto the road heading in a westerly direction. He stated that he at no time saw the motorcycle coming from the east prior to the collision.

The defendant Washington testified that after he left the store and had gone 'quite a piece' down the road something struck the truck from the back. He gave no more specific testimony as to the distance between the point where he pulled out onto the highway and the point where the accident occurred, but he did testify that he had been moving at least for a 'couple of minutes' before the accident occurred and that his speed at the time of the accident was somewhere between twenty and twenty-five miles an hour. Washington testified that at the time of the accident the truck was out of low gear, but had not been shifted into high gear. He stated that the accident occurred on a clear day in the late afternoon and the truck lights were on.

Defendant Washington said that after the impact he walked back of the truck and there saw a motorcycle caught in the right rear wheels of the truck and the deceased lying back of the motorcycle.

The passenger in the truck, Henry Miller, testified that when the truck pulled away from the store and approached the south edge of the highway he got out on the right running board and looked to the east. He stated that nothing obscured his view and the road was straight. He saw one vehicle coming towards the truck from the east, and he and Washington waited until it passed. After the vehicle passed, the road was clear to the east except for one automobile which was a considerable distance east of the truck. He stated that there was nothing between the truck and that automobile and that the truck pulled out and proceeded west on the road. There was no vehicular traffic coming from the west going east at this time. After pulling out onto the road, but prior to the impact with the motorcycle, the passenger testified the truck was passed by one automobile going in the same direction as the truck.

Miller testified that the truck was on the road and in its lane of traffic at the time the accident occurred, but did not know how far the truck had traveled from the grocery store when the accident occurred.

Miller had no estimate as to the speed of the truck at the time of the accident, but testified that it might have been going more than ten miles an hour. He also testified that the truck had its lights on, which included a tail light on the back of the truck and clearance lights on the top of the back of the truck.

The deposition of Miller corroborated the testimony of the defendant Washington to the effect that the impact occurred on the truck from the rear. Miller testified that prior to the impact there was no sound of brakes. Upon impact the truck was brought to a stop, and he got out and proceeded to the rear of the truck where he saw a man on the ground and the motorcycle up under the rear of the truck.

In opposition to the motion for summary judgment, the plaintiff submitted an affidavit by a person who described himself as a registered professional engineer maintaining an office in Gainesville, Florida. The engineer's affidavit stated that he had investigated between 900 to 1,000 automobile accident cases during the past twelve years and that he had testified at the trial of approximately one hundred of these cases as a 'traffic accident reconstruction expert'. The affiant stated in his affidavit that he had reviewed '* * * investigative reports, accident reports, engineering drawings, measurements, photographs of the scene of the accident and the depositions of the witnesses * * *', and had formed an opinion as to the cause of the accident. The affiant expressed an opinion, based on 'the presence and location of the skid marks, the maneuvering of the motorcycle and the position of impact' that the reaction time of the operator of the motorcycle was normal and based on 'the photographs and physical facts of the accident, that the truck involved in the accident was in fact cutting in on the motorcycle at the time the accident occurred.'

In the case of McNulty v. Cusak, Fla.App.1958, 104 So.2d 785, the court held that where a collision occurs between a vehicle lawfully stopped at a traffic light and a vehicle approaching from the rear, there is presumption that the collision was caused by the negligence of the vehicle approaching from the rear and that such presumption would require a directed verdict for the lead vehicle in the absence of evidence tending to show that the negligence of the rear vehicle did not cause the collision. Shortly after the McNulty case was decided the presumption rule was held to apply to a collision between a vehicle stopped and waiting to turn left and a vehicle approaching from the rear, Cooper v. Yellow Cab Co. Inc., Fla.App.1958, 106 So.2d 436 and also to a collision which occurred between a vehicle lawfully stopped in a line of traffic and a vehicle approaching from the rear, Shedden v. Yellow Cab Company of Miami, Fla.App.1958, 105 So.2d 388. More recent decisions have held that the presumption of negligence also applies in favor of the lead vehicle when struck from the rear while moving and located in its proper place on the highway, Rianhard v. Rice, Fla.App.1960, 119 So.2d 730; Busbee v. Quarrier, Fla.App.1965, 172 So.2d 17, 21; and Shaw v. York, Fla.App.1966, 187 So.2d 397.

The effect of the presumption is to conclude the issue of negligence against the driver of the following vehicle in the absence of evidence which tends to contradict the presumed fact, namely, the negligence of the vehicle striking from the rear. In Gulle v. Boggs, Fla.1965, 174 So.2d 26, 28, the court said with respect to the presumption:

'* * * It is constructed by the law to give particular effect to a certain group of facts in the absence of further evidence. The presumption provides a prima facie case which shifts to the defendant the burden to go forward with the evidence to contradict or rebut the fact presumed. When the defendant produces evidence which fairly and reasonably tends to show that the real fact is not as presumed, then the impact of 'the presumption is dissipated'. Whether the ultimate fact has been established must then be decided by the jury from all of the evidence before it without the aid of the presumption. * * *'

The plaintiff urges that the aforementioned presumption is a rule of evidence to be given effect at trial, but not to be applied in the summary judgment procedure. Because the purpose of the summary judgment procedure is to determine the existence of the an issue of fact, and the operation of the presumption is to give a particular effect to a certain group of facts, we can see no reason why the presumption should not apply to the summary judgment procedure, provided the facts which form the basis for the presumption are properly and conclusively shown.

The burden...