Wawner v. Sellic Stone Studio

• Decision Date: 13 July 1954
• Citation: 74 So.2d 574
• Parties: WAWNER v. SELLIC STONE STUDIO.
• Court: Florida Supreme Court

Page 574

74 So.2d 574

WAWNER v. SELLIC STONE STUDIO.

Supreme Court of Florida, En Banc.

July 13, 1954.

As Amended on Denial of Rehearing Sept. 28, 1954.

A. Lee Bradford, Carl P. Stephens, Jr., and Dixon, DeJarnette & Bradford, Miami, for appellee.

DREW, Justice.

This appeal arises from a negligence suit in which the jury found for the defendant, who is the appellee here. There is little, if any, dispute about the material facts. The main question presented is whether the lower court erred in failing to charge the jury with reference to the doctrine of 'Last Clear Chance.'

About 3:30 p.m. on January 1, 1953, a clear day, appellant, plaintiff below, a surveyor, was operating a surveyor's transit in the City of Miami at a place five feet north and five feet west of the center of the intersection of 3rd Street and N. W. 27th Avenue. This position placed him in the southbound traffic lane of N. W. 27th Avenue. While so situated and while, according to his uncontradicted testimony, looking west through the transit, appellant was struck by the left front of appellce's southbound truck and carried some fifty to sixty feet from the point of impact.

The driver of the truck, Reuben Harris, was the only witness for appellee and he testified in substance to the following: Reuben was driving the vehicle, which was a 1947 Ford 1 1/2 or 2-ton truck and loaded with breakable fabricated stone, about 25 to 30 miles per hour along the right side of the street about 2 feet west of the center line; and he saw appellant in the street standing behind a tripod when he, Reuben, was within 'approximately 50 to 60 feet' from appellant, about which distance Reuben stated. 'I don't know exactly, but that was my guess.' He wasn't sure whether appellant was looking through the instrument 'because I didn't pay him that much attention. I do know he was there,' and also could not swear in what direction appellant was facing 'because I didn't pay that much attention.' Reuben further stated, 'After I seen him I was driving and a car came on my right and passed in front of me, and of course it cut my vision at the time before I hit Mr. Wawner. When I did see Mr. Wawner I was right on him. I couldn't stop, and when I got right there to him and hit him, evidently he was hanging on. I didn't stop right then, but I slowed down, because I figured I might go over him. I slowed down till he fell off. I saw he was in the street and I pulled over.' Pertaining to the car which passed him on his right, Reuben stated that it was going 'much faster' than he was and pulled right in front of him and 'kept straight on going.' Reuben also stated that he did not at any time apply enough pressure on the brakes of the truck to make a tire mark on the street.

There were no skid marks at the accident scene. A witness for plaintiff testified that he had followed the appellee's truck directly at its rear for a block or two preceding the accident, that the truck traveled in a straight line at a constant speed of about 30 miles per hour right up to the point of impact without the brakes being applied, and that immediately prior to the accident he heard no horns sounded and saw no cars pass in the same direction on either side.

The court below charged the jury on the law of contributory negligence but refused to instruct on the doctrine of last clear chance. We are of the opinion that under the circumstances the jury was clearly misled to appellant's harm for the reasons stated by us in a similar case, Williams v. Sauls, 151 Fla. 270, 274, 275, 9 So.2d 369, 371. See also Merchants' Transport Co. v. Daniel, 109 Fla. 496, 149 So. 401; Miller v. Ungar, 149 Fla. 79, 5 So.2d 598.

In the case of Williams v. Sauls, supra, the plaintiff's husband was struck and killed by defendant's truck. The driver at night had visibility sufficient to see ahead for nearly a quarter of a mile away. The driver saw deceased when he first came into sight and later when he started across the road at a time when the driver was still 35 feet away. Thereafter the driver did not apply his brakes sufficiently to show skid marks and swerved to the left but struck deceased with the right fender. In reversing judgment for the defendant, this court, speaking through Mr. Justice Adams, said:

'Passing now to the plaintiff's claim that the court erred in failing to charge on the last clear chance rule. The gist of the rule is that the jury ascertain whose negligent act was the immediate cause of the injury. The commission of the last or immediate negligent act renders all antecedent acts of negligence remote and immaterial. * * *

'* * * Under the charge as given the jury could and no doubt did conclude that deceased negligently entered the road, and that such negligence contributed to his injury. The very claim of the benefit of this doctrine, however, is to admit a wrongful act in getting into a perilous position. If he is to remain bound by the original wrong, then he is deprived entirely of the benefit of relief for defendant's wrongful act which may be the immediate cause of the injury.'

We think the Sauls case controls the case at bar. But the appellee contends that the doctrine of last clear chance does not apply to the instant facts, first, because the appellee driver did not have sufficient time to avoid the accident after he became aware that plaintiff was in danger, and, second, because the plaintiff's negligence was concurrent with that of appellee.

These dual contentions actually present but one proposition. This is so because where a person has negligently placed himself in a dangerous situation upon a highway and an approaching motorist 'actually sees his situation and should appreciate his danger, the last clear chance rule applies without regard to the continuing negligence of the traveler concurring with that of the operator up to the very instant of the injury; * * *'. Merchants' Transport Co. v. Daniels, 109 Fla. 496, 503, 149 So. 401, 403, supra. This proposition also was the substance of our holding in Williams v. Sauls, supra, where we stated that the commission of the last negligent act renders prior negligent acts 'remote and immaterial.'

For example, assume a situation where an approaching motorist sees a person on a highway. If the motorist sees the person in a position of danger under circumstances from which the motorist does or should realize the other is not likely to extricate himself, the question is whether the motorist, at the time he realized, or should have realized, the other's peril, then had sufficient time and means to avert the threatened injury. If the motorist has such time and means, he clearly has in fact the last clear chance to avert harm, and the doctrine is applicable. It applies because, at the moment the motorist did or should have realized the peril, a duty arises for him to use his existing ability to avoid injury. Failure to do that, resulting in injury, is negligence which is the proximate cause of the accident. Conversely, if the circumstances under which the person is on the highway are not such as to put the motorist on notice that the other will not act to avert harm to himself, or, if such circumstances do not in fact arise soon enough to give the motorist notice of the peril in time to avert harm, the motorist does not have a last clear chance to avoid the accident and the doctrine is not applicable. It does not apply because the motorist was not guilty of any new negligence. There was not a time when he had existing ability to avoid injury after he did or should have realized another's peril, and therefore no new duty arises in that respect. In this latter situation the inapplicability of the doctrine can be expressed in two ways: it can be said that the motorist did not have an existing ability to avoid injury after he was or should have been aware of the peril and it can be said that the negligence of the other person continued to the time of injury. Either expression achieves the same result.

Determination of whether a new duty arose on the part of the motorist is made by examining closely the situation and conduct of the person on the highway. From that examination it must be determined whether the situation and conduct of such person was sufficient to put the motorist on notice of the other's peril in time to avoid it. Some factual situations are relatively easy to solve. For example, if a person is lying drunk in the street through his own negligence, a motorist who sees him there in time to avoid injury must use due care to do so. Under those circumstances a motorist cannot continue forward without using his ability to avoid an accident and thereafter excuse himself because of the other's antecedent negligence. Also, if, instead of being drunk, the pedestrian negligently had kneeled to tie his shoe with his back to oncoming traffic and a motorist so sees him in time to avert injury, the doctrine is applicable because the other person is in a situation of inattention under circumstances sufficient to put the motorist on notice that the other will not likely take steps to avert harm to himself.

Perhaps a more forceful example would be that of a blind...