Vihon v. McCormick, 567
| Decision Date | 10 December 1958 |
| Docket Number | No. 567,567 |
| Citation | 109 So.2d 400 |
| Parties | Peter M. VIHON, Appellant, v. Maurice G. McCORMICK and Leslie Y. Ford, Appellees. |
| Court | Florida District Court of Appeals |
McClure & Turville, J. A. McClure, Jr., St. Petersburg, for appellant.
Masterson & Meros, B. J. Masterson, St. Petersburg, for appellee, Leslie Y. Ford.
Forrest Hoffman, St. Petersburg, for appellee, Maurice G. McCormick.
This is an appeal from a summary final judgment in a negligence action. Peter M. Vihon sued Maurice G. McCormick and Leslie Y. Ford for the death of plaintiff's wife which resulted when defendant Ford's car, in which decedent was a passenger, collided with defendant McCormick's car at an intersection in St. Petersburg. The trial judge entered a summary final judgment in favor of both defendants, and plaintiff appeals.
The accident occurred at about 1:30 A.M. on February 24, 1957. McCormick was going west on Fifth Avenue North in St. Petersburg, and Mrs. Ford was going south on Forty Ninth Street North, with decedent, her sister, riding as a passenger in the front seat. A blinking yellow light controlled 5th Avenue traffic and a blinking red light controlled 49th Street traffic. No obstacles blocked either driver's vision.
When McCormick, whose car was going between twenty-five and forty-five miles per hour, was forty or fifty feet from the intersection, he saw Mrs. Ford's car about a half block from the intersection. Assuming that either she would stop or he would pass through the intersection before she reached it, McCormick continued on into the intersection. When he saw that she was not going to stop, it was too late to do anything to avoid a collision.
Mrs. Ford, whose car was going between twenty-five and thirty miles per hour, approached the intersection, slowed but did not stop, looked and saw no approaching cars, and continued into the intersection, increasing her speed after looking. She suddenly saw McCormick's car directly in the path of her car, but it was too late to avoid a collision.
The front of Mrs. Ford's car, a Buick sedan, struck McCormick's car, a Plymouth, two door convertible, between the right front wheel and the rear of the right door. McCormick's car spun around and came to rest facing east near the north-west corner of the intersection. Mrs. Ford's car also skidded around, coming to rest facing north on the south side of the intersection.
Mrs. Ford and her sister, professional entertainers, were returning home from a social gathering of such entertainers. McCormick was returning home from a date.
Apparently, Mrs. Ford and her sister discussed the significance of a blinking, red traffic light just before the accident. Also, decedent supposedly expressed confidence in Mrs. Ford's ability as a driver during the conversation. As to the traffic light, both ladies apparently thought it meant to 'slow down, not stop.'
The speed limit on 5th Avenue was thirty-five miles per hour, and the limit on 49th Street was twenty-five miles per hour. Also, St. Petersburg ordinances provide that a blinking red light requires a driver to stop before proceeding, and a yellow, or amber, light requires a driver to drive with caution, slowing or stopping if conditions warrant or traffic requires.
Plaintiff raises five questions on appeal. Two attack the trial judge's entry of summary judgment for defendant Ford, two attack entry of summary judgment for defendant McCormick and one attacks the propriety of charging costs against plaintiff.
As to entry of summary judgment for defendant Ford, driver of the car in which plaintiff's wife was riding as a guest passenger, suffice it to say that, from the facts appearing in the record, we hold the trial judge properly entered a summary judgment for defendant Ford. Section 320.59, Fla.Stat.1955, F.S.A.
However, as to the summary judgment for defendant McCormick, we conclude that the trial judge must be reversed. Entry of summary judgment requires that there is no genuine material issue of fact and it also requires that there are no inferences which a jury may properly draw which would preclude a summary judgment for the moving party. As said by the Supreme Court in Weber v. Porco, Fla.1958, 100 So.2d 146, on page 148:
'* * * While summary judgment proceedings have done much when properly employed to expedite the disposition of litigated causes, we have consistently adhered to the proposition that when the depositions or affidavits submitted in support of a motion for summary judgment suggest a factual conflict or present a situation on which a jury might properly draw varied conclusions from the record presented, then it is not proper to grant a summary judgment * * *.'
In outlining the facts in this case, above, we...
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