Wharton v. Day
| Decision Date | 13 November 1942 |
| Citation | 10 So.2d 417,151 Fla. 772 |
| Parties | WHARTON v. DAY. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Volusia County; H. B Frederick, judge.
Shelley & Mabry and Walter A. Shelley, all of Daytona Beach, and Marks, Marks, Holt, Gray & Yates and Harry T. Gray, all of Jacksonville, for appellant.
Hull Landis, Graham & French, of De Land, for appellee.
This is an appeal to review a judgment for the plaintiff below for injuries by her sustained in an automobile collision in Volusia County Florida, on the Atlantic Boulevard or highway just south of the City of Ormond. Suit was brought and the action prosecuted under the provisions of Chapter 18033, Acts of 1937, Laws of Florida, commonly known as the guest statute. The plaintiff was a guest passenger in an automobile owned by the defendant but operated at the time of the collision by Miss Lillie Mae Brooks. The defendant, the owner, was on the front seat of the car at the time of the impact.
We have considered the several provisions of Chapter 18033, Acts of 1937, Laws of Florida, in numerous cases. See Cormier v Williams, 148 Fla. 201, 4 So.2d 525; Juhasz v Barton, 146 Fla. 484, 1 So.2d 476; Koger v. Hollahan, 144 Fla. 779, 198 So. 685, 131 A.L.R. 886; Kozak v. Ake, 147 Fla. 508, 3 So.2d 120; McMillan v. Nelson, Fla. 5 So.2d 867; O'Reilly v. Sattler, 141 Fla. 770, 193 So. 817; Gittleman v. Dixon, 148 Fla. 583, 4 So.2d 859; Jackson v. Edwards, 144 Fla. 187, 197 So. 833; Winthrop v. Carinhas, 142 Fla. 588, 195 So. 399.
The evidence discloses that the plaintiff, a registered nurse, on February 22, 1941, was employed at a salary of approximately $3,000 per year in the home of Mrs. W. N. Reynolds at 1018 North Atlantic Avenue, Daytona Beach. The plaintiff, Miss Miller, Miss Brooks, and Miss Burge accepted the invitation of A. C. Wharton, Jr., to go for a ride in the latter's car. Miss Brooks was at the wheel and the defendant sat beside her and the three other ladies sat on the rear seat. From the Reynolds home they traveled in a northerly direction through the City of Daytona Beach along Atlantic Avenue, which street extended north through the City of Ormond and is the main artery of travel between the two cities between the Atlantic Ocean and Halifax River. The defendant directed Miss Brooks to increase the speed of the car, which she did until the car reached a speed of 70 miles per hour, when the speed was reduced as the car approached a curve in the street with shrubbery on either side.
There is a conflict in the evidence as to the speed of the car when making the curve and which side of the center of the street it was on. The plaintiff testified that the car traveled at from 35 to 50 miles per hour and was on the left side of the center; that a car was traveling south and one north on the street and each could have been seen by Miss Brooks and the defendant. While some shrubbery could have obstructed their vision while approaching proaching and traveling the curve, thereafter the street was straight, clear of obstructions, when the City of Ormond could be seen and the car traveling north on the side of the street with the defendant and the car going south. The defendant's car was driven into the rear of the car traveling north. The impact threw plaintiff forward and her head struck the front seat of the car, broke her neck, caused concussion of the brain and loss of teeth, and she spent 37 days in a hospital and it appears that her injuries are permanent.
Four occupants of the car testified that the speed of the car was about 20 miles per hour at the time of the impact. They testified that the car with which they collided was parked on the street and that Miss Brooks attempted to drive around it and a car traveling south forced her to turn back into the lane of traffic when the collision occurred. The acts of the defendant and Miss Brooks while operating the car at defendant's direction relied upon to bring the case at bar within the provisions of Chapter 18033, supra, are, viz (1) Driving the car 70 miles per hour on Atlantic Avenue where heavy traffic ordinarily exists; (2) the speed of the car around the curve; (3) driving the car on the left of the center while traveling the curve; (4) obstructions in the form of shrubbery on the curve; (5) a reckless disregard of the safety of the passengers when approaching from the rear the car in the same lane going north; (6) failure to observe the car traveling south; (7) failure to apply the brakes when approaching the northbound car; (8) the speed of the car violated the provisions of Ordinance No. 585 of the City of Ormond in that it traveled at a speed of more than 20...
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