Washewich v. LeFave, 70--386
| Decision Date | 07 June 1971 |
| Docket Number | No. 70--386,70--386 |
| Parties | Olga WASHEWICH, Appellant, v. Hollie H. LeFAVE, Appellee. |
| Court | Florida District Court of Appeals |
John R. Beranek, of Jones, Paine & Foster, West Palm Beach, for appellant.
Larry Klein of Cone, Wagner, Nugent, Johnson, McKeown & Dell, West Palm Beach, for appellee.
The basic issue presented by this appeal is whether or not the defendant may be held liable for an injury to the plaintiff which resulted from two successive accidents where the defendant was responsible only for the second accident and an apportionment or division of the injury as between the two accidents was not reasonably possible under the facts of the case.
On 4 March 1967 the plaintiff, Hollie H. LeFave, the appellee here, filed a complaint in the Circuit Court for Palm Beach County, Florida, alleging injuries as a result of the negligent operation of a motor vehicle by the defendant-appellant, Olga Washewich. The case was tried on 8 January 1968 and resulted in a directed verdict for the defendant on the ground that the plaintiff was unable to apportion her damages as between the accident in which the defendant was involved and an immediately preceding accident which was in no way caused by the defendant.
On 22 April 1968 the trial judge granted plaintiff's post-trial motion for a new trial. The defendant appealed, and the order granting the new trial was affirmed. See Washewich v. LeFave, Fla.App.1969, 219 So.2d 46. The new trial resulted in a jury verdict in favor of the plaintiff. Final judgment was entered on the verdict and this appeal followed.
The accident occurred on Military Trail in Palm Beach County, Florida, at approximately 12:30 a.m. on 15 November 1966. The plaintiff was driving her automobile in a northerly direction and collided with a vehicle on the west side of the road being driven in a southerly direction by Mr. Gary Cornn. As a result, the plaintiff was thrown from her vehicle and came to rest on the east side of the road in the northbound traffic lane. A few minutes later, the defendant's vehicle approached the scene of the accident from the south. The defendant failed to see the plaintiff and struck the plaintiff who was still lying in the northbound traffic lane. Plaintiff was dragged to the north approximately fifty-one feet by defendant's automobile.
The defendant testified that as she approached the point of impact with the plaintiff, she saw a man standing in the road. Defendant stated that she had been going approximately forty miles per hour, but when she saw the man in the road, she slowed to about thirty miles per hour. Defendant admitted that she did not see the plaintiff until she was about two car lengths south of her. Defendant said she was unable at this point to do anything except apply brakes.
The man whom defendant had seen in the road, one Archie Jones, testified that when he came on the scene, the plaintiff was in the road sitting up and trying to move. Mr. Jones said that another man told the plaintiff to lie down and placed some type cover over her. Shortly thereafter the impact with the defendant's vehicle occurred. After defendant's automobile came to rest, the plaintiff was under the right front wheel of defendant's vehicle. According to Mr. Jones, plaintiff was then motionless.
One treating physician testified that plaintiff, as a result of the accident, had a shortening of one leg and a deformed pelvic ring and both conditions were permanent. He was unable to associate the deformities with either accident, but said the impact of either could have caused them. Similar testimony was given by another treating physician who described certain other injuries received by the plaintiff.
It is a fundamental principle applicable to the law of negligence that where one seeks to recover damages by reason of the negligence of another, the former must not only prove the extent of his injuries, but also that they were proximately caused by the negligence of the latter. Chomont v. Ward, Fla.1958, 103 So.2d 635, 638. This requirement is somewhat relaxed, however, where the evidence indicates that the defendant's negligence has proximately resulted in an aggravation of a pre-existing injury and the entire consequence cannot reasonably be divided as between several independent causes. In Hamblen, Inc. v. Owens, 1937, 127 Fla. 91, 172 So. 694, 696, the Florida Supreme Court stated:
'* * * The defendant must respond in damages for such part of the diseased condition as his negligence has caused and if there can be no apportionment, or it cannot be said that the disease would have existed apart from the injury, then he is responsible for the diseased condition. * * *'
This principle was applied in the case of Wise v. Carter, Fla.App.1960, 119 So.2d 40, where the evidence disclosed that the plaintiff was injured in an automobile accident for which the defendant was apparently liable. Twenty-two days prior to this accident the plaintiff had received similar injuries from a fall in a furniture store. The testimony with respect to the injuries was so indefinite with...
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