Stirling v. Sapp

• Decision Date: 02 July 1969
• Docket Number: No. 37573,37573
• Citation: 229 So.2d 850
• Parties: Ronald C. STIRLING and Colleen Finney Stirling, his wife, Petitioners, v. James W. SAPP and Sandra Ash Sapp, his wife, Respondents.
• Court: Florida Supreme Court

Page 850

229 So.2d 850

Ronald C. STIRLING and Colleen Finney Stirling, his wife, Petitioners, v. James W. SAPP and Sandra Ash Sapp, his wife, Respondents.

No. 37573.

Supreme Court of Florida.

July 2, 1969.

Rehearing Denied Sept. 9, 1969.

George A. Routh and Carleton L. Weidemeyer, Clearwater, for petitioners.

Luke R. Kaleel, of Kaleel, Kaleel & Kaleel, St. Petersburg, for respondents.

ADKINS, Justice.

By petition for a writ of certiorari, we are requested to review a decision of the District Court of Appeal because of alleged conflicts with prior decisions of this Court and decisions of other District Courts of Appeal. Fla.Const., Art. V, § 4 (F.S.A.); Stirling v. Sapp, 209 So.2d 251 (Fla.App.2d 1968).

Petitioners, plaintiffs below, brought suit for damages sustained as the result of an automobile accident at an unmarked intersection. Final judgment for plaintiffs was entered upon a jury verdict in the amount of $15,000.00. This judgment was set aside upon motion and final judgment notwithstanding the verdict was entered by the trial court in favor of the defendants. The final order which set aside the judgment for plaintiffs was affirmed on appeal.

In its opinion the District Court of Appeal quoted pertinent portions of the trial judge's final order as follows:

'(T)he evidence is substantially without conflict as to the cause of the accident. The driver of each vehicle was a young matron who, coincidentally, on the day in question had attended the same church meeting in the home of a fellow church member. Each left at or about the same time, i.e. about 11:00 a.m. on a bright, clear day, in a pleasant residential neighborhood. Somehow, they got athwartships of each other on the way home and found themselves approaching the same unmarked intersection at right angles, the plaintiff headed North and the defendant headed East. The testimony of each is remarkably identical from this point on. Each says she was not exceeding 15 to 16 miles per hour; each says that she looked in both directions as she approached the intersection; each says that there was nothing to obstruct her view in the direction from which the other car was approaching; and each says that she did not see the other until at, or a split second before, impact. The evidence further reflects that there were no skid marks from either vehicle prior to impact and that the impact occurred approximately in the geometric center of the intersection.

'From all of the foregoing, this Court finds that the case is controlled by the principles implicit * * * in Kokotoff v. Higman (Fla.App.3d 1958), 101 So.2d 166. While the jury was justified in finding negligence on the part of the defendant driver, the factual circumstances, manifest by the overwhelming weight of the evidence, place the plaintiffs in virtually the same position as the defendants. A finding of negligence on the part of one driver must necessarily result in a finding of negligence on the part of the other unless the jury completely disregards all the testimony and inferences (and bearing on the issue of contributory negligence), in favor of the defendants.

To so disregard such evidence and inferences in the face of this record would be arbitrary and unreasonable, and the record is devoid of any justification therefor.

'In any event, and notwithstanding the foregoing, this Court finds that the substantially undisputed testimony reflects that each of the drivers was negligent in this case as a matter of law. The evidence herein will not permit of any reasonable inferences to the contrary.'

Motions for judgment notwithstanding verdict, like motions for directed verdict, should be resolved with extreme caution since the granting thereof holds that one side of the case is essentially devoid of probative evidence. The trial judge is authorized to grant such motion only if there is no evidence or Reasonable inferences to support the opposing position. Hendricks v. Dailey, 208 So.2d 101 (Fla.1968). The rules governing motions for judgments notwithstanding the verdict are substantially the same as those which guide the disposition of a motion for directed verdict. This Court in Nelson v. Ziegler, 89 So.2d 780 (Fla.1956) said:

'A party moving for a directed verdict admits not only the facts stated in the evidence presented but he also admits every ocnclusion favorable to the adverse party that a jury might freely and reasonably infer from the evidence. It is ordinarily the function of the jury to weigh and evaluate the evidence. This is particularly so in negligence cases where reasonable men often draw waried where reasonable men often draw varied a case of this nature, unless the evidence as a whole with all reasonable deductions to be drawn therefrom, points to but one possible conclusion, the trial judge is not warranted in withdrawing the case from the jury and substituting his own evaluation of the weight of the evidence.'

See also Greer v. Thweatt, 202 So.2d 574 (Fla.App.1st 1967).

In evaluating the facts as stated in the District Court opinion (209 So.2d 251), it is apparent that the defendants' automobile was to the plaintiffs' left and the plaintiffs' automobile was to the defendants' right. Fla.Stat. § 317.401(2), F.S.A. reads as follows:

'When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.'

The plaintiff driver, having the right-of-way, could legally assume that the approaching motorist on the intersecting street would yield the right-of-way, as this Court has approved the following principle of law:

'A person operating a vehicle along a roadway in compliance with the law has a right to assume that the person operating a vehicle upon an intersecting street will observe the rules of the road, will obey the laws governing the operation of automobiles and that such approaching driver will exercise due care to avoid an accident, and he has a right to act upon this assumption; and if such motorist has the right-of-way under the law and circumstances of the case, he has the right to assume that the approaching motorist on the intersecting street will yield the right-of-way to him, and it would not be contributory negligence on his part to act on such assumption in proceeding into the intersection, unless and until he became aware of the fact that such right-of-way would not be given, and unless he then had a clear opportunity to act in such emergency to avoid the collision After the emergency arose.' Kerr v. Caraway, 78 So.2d 571 (Fla.1955).

Lloyd v. McKenna, 179 So.2d 583 (Fla.App.3d 1965) involved a collision at an unmarked intersection between a taxicab, in which plaintiff was a passenger, and an automobile driven by defendant McKenna. Plaintiff joined the taxicab company as a defendant. The jury returned a verdict holding the cab company liable but exonerating defendant McKenna. On appeal the only point preserved for review was the failure of the trial court to direct a verdict in favor of plaintiff against McKenna because defendant McKenna admitted he did not see the cab approaching from the left. In affirming, the Court said:

'We find no error in the trial judge submitting these issues to the...