Via v. Tillinghast
| Decision Date | 23 April 1963 |
| Docket Number | 62-434,Nos. 62-433,s. 62-433 |
| Citation | 153 So.2d 59 |
| Parties | Sylvia P. Barrows VIA, and her husband, W. A. Via, Appellants, v. Fred C. TILLINGHAST, Russell J. Hlavsa, and Independent Dairy Farmers Association, a Florida corporation, Appellees. |
| Court | Florida District Court of Appeals |
Nichols, Gaither, Beckham, Colson & Spence and Aaron Podhurst, Miami, for appellants.
Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Carey, Goodman, Terry, Dwyer & Austin, Fowler, White, Gillen, Humkey & Trenam and Henry Burnett, Miami, for appellees.
Before PEARSON, TILLMAN, C. J., and CARROLL and HENDRY, JJ.
An automobile in which the plaintiff Sylvia Via was a passenger, driven by Tillinghast, collided with an automobile owned and driven by Hlavsa, an employee of the Independent Dairy Farmers Association. Mrs. Via sued all three for damages for personal injuries. Her husband joined, seeking derivative damages. Hlavsa and the corporation moved for and obtained separate summary judgments. The plaintiffs' appeals from the two judgments were consolidated.
In granting a summary judgment in favor of the defendant Hlavsa the trial court ruled there was no genuine issue as to any material fact. Summary judgment for the corporation as Hlavsa's employer followed, based on that ruling. 1
The plaintiff's driver Tillinghast was proceeding north on Northwest 10th Avenue in Miami. The defendant Hlavsa was traveling west on 119th Street, a through street running east and west, having four lanes for travel, and a speed limit of 40 miles per hour. Northwest 10th Avenue is a stop street. Tillinghast stopped at the stop sign. He waited there until several cars which were going east on 119th Street had cleared the intersection. He then looked to the east and saw the Hlavsa car at a distance which he says was 200 feet or more from the intersection. Feeling he had time to cross safely, Tillinghast then proceeded to make a crossing without again looking at the approaching Hlavsa car. The latter struck Tillinghast's car at the right hand rear door when the forward part of the Tillinghast car had cleared the intersection.
There was a conflict in the evidence as to how far east of the intersection the Hlavsa car was when Tillinghast proceeded into the intersection. Tillinghast said it was 200 feet or more away. Hlavsa said he did not see the Tillinghast car until he was within 50 to 60 feet of the intersection, implying the Tillinghast car was not there to be seen earlier. There was an issue also as to Hlavsa's speed. He estimated his speed to be about 37 miles per hour. Tillinghast claimed Hlavsa was exceeding the speed limit. Using Hlavsa's figure of 37 miles per hour, and taking judicial notice, as we may, of the number of feet traveled per second 2, it is to be inferred that Hlavsa was proceeding at 54 and a fraction feet per second, which would put him only one second away from the intersection when he first saw the Tillinghast car. Tillinghast's speed in crossing the intersection can be set at 5 to 10 miles per hour. That was Hlavsa's estimate, and is such as could be inferred from the fact that Tillinghast started from a stand-still and felt no need to rush. At such a speed, covering approximately 10 feet per second, it could be inferred it would take Tillinghast about four seconds to cross the four-lane wide intersection. Although a jury privileged to judge credibility of witnesses and the weight and reasonableness of the testimony might arrive at a different conclusion, the trial judge, on the motions for summary judgment, was required to accept the facts and reasonable inferences therefrom as they might favor the party moved against. 3
In order for Hlavsa to be absolved of liability it was necessary to conclude that on the evidence Hlavsa was free of any negligence causing or combining with negligence of Tillinghast to proximately cause the collision 4. The trial judge was in error in so concluding. Although a driver on a through street is entitled to assume that a driver approaching an intersection from a stop street will comply with the requirement to permit traffic...
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Wilson v. State Road Dept.
...the movant and in favor of the party moved against. Delany v. Breeding's Homestead Drug Co., 93 So.2d 116 (Fla.1957). Via v. Tillinghast, 153 So.2d 59 (Fla.App.1963). Koplin v. Bennett, 155 So.2d 568 (Fla.App.1963). By the same token, in an appeal from a summary judgment the reviewing court......
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...fifteen to twenty miles per hour and that the plaintiff's speed was approximately thirty miles per hour.' In Via v. Tillinghast, Fla.App.1963, 153 So.2d 59, involving a similar intersectional accident and where summary judgment had been entered in favor of the driver on a through street, th......
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Fideli v. Colson, 63-742
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