Stephens v. Moody

• Citation: 225 So.2d 586
• Decision Date: 14 August 1969
• Docket Number: No. K--146,K--146
• Parties: Patricia R. STEPHENS, Appellant, v. J. R. MOODY, Jr., individually and as trustee of Florida Asphalt Paving Company, a dissolved Florida corporation, Appellee.
• Court: Court of Appeal of Florida (US)

Page 586

225 So.2d 586

Patricia R. STEPHENS, Appellant, v. J. R. MOODY, Jr., individually and as trustee of Florida Asphalt Paving Company, a dissolved Florida corporation, Appellee.

No. K--146.

District Court of Appeal of Florida, First District.

Aug. 14, 1969.

Gregory, Towles & Beatty, Quincy, for appellant.

E. Harper Field, of Keen, O'Kelley & Spitz, Tallahassee, for appellee.

CARROLL, DONALD K., Acting Chief Judge.

The plaintiff in a negligence action has appealed from a final summary judgment entered by the Gadsden County Circuit Court granting the defendant's motion for a summary judgment on the ground that the plaintiff was contributorily negligent as a matter of law.

The basic question presented for our determination in this appeal is whether, in view of the evidence before the court at the hearing on the said motion, the plaintiff was guilty of contributory negligence as a matter of law and, if so, whether the defendant was entitled to a summary judgment pursuant to the rules established in this state governing the entry of such judgments.

Briefly stated, the evidence before the court at the hearing on the defendant's motion for a summary judgment, as to the issues of the defendant's negligence and the plaintiff's contributory negligence, was substantially as follows:

On the date of the collision in question, the plaintiff, then an unmarried woman, was living with her parents in a rural community in Gadsden County known as 'Dogtown.' She was employed by a jewelry store in the adjoining county of Leon, in the City of Tallahassee, working until 6 o'clock p.m. five days a week, including the date in question. At appoximately 6:30 o'clock p.m. on that date, while she was driving her automobile from work to her parents' home, her car collided with a diesel tractor being operated by an employee of the defendant on a 'country road' in Gadsden County.

Immediately before the collision, and unknown to the plaintiff, an employee of the defendant was operating a diesel tractor with a sweeper broom attachment to remove dry dirt from the surface and shoulder of the road in order to prepare the road for resurfacing and widening. About two feet of a four-foot-wide cylindrical sweeper broom would normally be sweeping on the dry dirt shoulder of the road.

At the time of the collision a flagman, employed by the defendant to warn oncoming traffic, was sitting on the rear left hand fender of the tractor as the broom was sweeping dirt. While the flagman's testimony was contradictory, he testified that the sweeping operation created 'a pretty good bit' of dust and that 'sometimes it was pretty thick.' The flagman further testified that he heard the plaintiff's car coming, and then, after a cloud of dust 'come by and parted and I saw it coming then, I saw the car was gonna hit.'

The plaintiff testified in her deposition that she did not notice the tractor until the collision; that she had travelled through a dip, or depression, in the road and, after coming up from the dips, she first noticed the dust or a dust cloud, which was not very far from her car at the time, but she was unable to explain why she did not see the dust before she entered the dip; and she testified that her car had penetrated the thick dust 'approximately a few feet' before the impact.

Immediately prior or simultaneous to the plaintiff's car's entering the dust cloud, an oncoming car, after passing through the same cloud, passed the plaintiff's car.

When the plaintiff's car came out of the dip into the road, she was travelling at a speed of approximately 35 to 40 miles an hour. She applied her brakes to slow down as she came out of the dip, because the dust cloud was 'quite wide' and 'was very thick.'

The plaintiff further testified in her deposition that she was familiar with the road in question prior to the collision, having driven on it twice daily to and from her work in Tallahassee; that the only construction sign she had ever noticed on this road was located about two miles from the scene of the collision, advising: road under construction--reduce speed, but she had never seen any construction equipment on the road prior to the collision.

On the basis of the foregoing evidence the court held in the final summary judgment appealed from that the plaintiff was guilty of contributory negligence as a matter of law and hence barred from recovering damages against the defendant in this negligence action.

In order to test the validity of that summary judgment, we must examine it in the light of the rules established in this state as governing the entry of summary judgments under our procedural rules.

The key provision of Rule 1.510, Florida Rules of Civil Rpocedure, 21 F.S.A., relating to summary judgments, reads as follows: Upon the hearing of a party's motion for a summary judgment: 'The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter lf law.'

As we have noted in several decisions, the structure of the quoted provision indicates that there are two conditions precedent to the entry of a summary judgment under the rule: (a) that there is no genuine issue as to any material fact shown by the mentioned pleadings, depositions, answers to interrogatories, admissions on file, and affidavits; and (b) that the moving party is entitled to a judgment as a matter of law.

The basic rules governing the entry of summary judgments, as established by court decisions in this state, are as follows:

A cardinal principle, recognized and applied in innumerable Florida cases, is that, in the consideration of a motion for a summary judgment under the said rule, all doubts and inferences as to factual matters must be resolved against the party making the motion. See Williams v. City of Lake City, 62 So.2d 732 (Fla. 1953), and Majeske v. Palm Beach Kennel Club, 117 So.2d 531 (Fla.App. 1960). In the Williams case, supra, the Supreme Court of Florida further held:

'The right to a jury trial is a very sacred part of our system of jurisprudence and, while we have held that the granting of a summary judgment does not infringe upon such constitutional right, that very holding carries with it the idea that such judgments should de sparingly granted and only in those cases where there remains no Genuine issue of any Material fact. To put it another way, such motion should be granted only where the moving party is entitled to a judgment as a matter of law. It was never intended by this rule that cases should be tried by affidavit or that affidavits, interrogatories or depositions or similar evidence, could be used as substitutes for...