Theriault v. Rogers, 63-815
| Decision Date | 30 June 1964 |
| Docket Number | No. 63-815,63-815 |
| Citation | 166 So.2d 820 |
| Parties | Albert John THERIAULT, Jr., Appellant, v. Sellers B. ROGERS and William Bruce Rogers, a minor, by and through his father and next friend, Sellers B. Rogers, Appellees. |
| Court | Florida District Court of Appeals |
Dean, Adams & Fischer, Miami, for appellant.
Matthews & Quinton, Miami, for appellees.
Before CAROLL, TILLMAN PEARSON and HENDRY, JJ.
Defendant-appellant's principal contention is that the trial court erred in failing to grant his motion for directed verdict.
The facts, viewed in the light most favorable to the plaintiffs, and giving them every possible inference in their favor, are as follows:
On September 3, 1960 the appellee, William Bruce Rogers (hereafter referred to as 'Billy'), age 9, went fishing with his friend, Victor Santie, Jr. and his friend's father, brother and sister. They were fishing at a canal located approximately 28 miles west of Miami on State Road 90, known as the Tamiami Trail. The two lane road ran in an east-west direction, and was bisected at this point by the canal which ran in a north-south direction. There was a bridge over the canal with a railing three feet high on either side. The road, at this point, is straight, flat and unobstructed for a great distance in either direction.
The boy was on the southwestern side of the bridge and the girl, Elizabeth Santie, age 11, was on the southeastern corner of the bridge when Billy started walking briskly in a diagonal northwesterly direction to the other side of the road. Billy had crossed the southern lane and just crossed into the northern lane when the defendant, driving at about 45 miles an hour in a westerly direction, hit Billy with the left front side of his car. This caused the boy to fly into the air and land in a sitting position seventy-five feet farther along the road, at which time the defendant's car hit him for the second time dragging him under the car.
Elizabeth Santie testified that she had seen the defendant's car some distance down the road, but the defendant insisted that he did not see the girl nor Billy on the south side of the bridge as he approached. The defendant further testified that he did not see Billy until he was ten to twenty-eight feet away, at which time it was 'too late'.
The defendant, in support of its contention for a directed verdict, has argued the facts in this case bring it within that line of cases generally referred to as a 'dart out' or 'sudden emergency' cases. We can not agree that this case falls within that class or category. It is not controlled by the law enunciated in such cases. In those situations, the courts have permitted directed verdicts or summary judgments in defendant's favor on the basis of a child running out from behind some obstacle or the middle of a street without any prior warning, and under such circumstances as make it impossible for the driver to avoid hitting the child. 1
The facts as outlined by defendant are capable of belief, but they are the defendant's version, and the plaintiff's version, must be considered true for the purposes of deciding the defendant's motion for a directed...
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...to the party moved against. Nelson v. Ziegler, Fla.1956, 89 So.2d 780; Budgen v. Brady, Fla.App.1958, 103 So.2d 672; Theriault v. Rogers, Fla.App.1964, 166 So.2d 820; Wilson v. Bailey-Lewis-Williams, Inc., Fla.App.1967, 194 So.2d 293. Measuring the evidence in light of this principle at the......
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Mathis v. Lambert
...not have been disturbed. The facts of the instant cause are very similar to the facts before this court in the case of Theriault v. Rogers, Fla.App.1964, 166 So.2d 820, cert. denied, Fla.1965, 172 So.2d 596. In that case, the defendant driver moved for a directed verdict where the evidence ......
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