110 So. 2d 90 | Fla. Dist. Ct. App. | 1959
This appeal is from a final judgment, favorable to the plaintiff-appellee, rendered after a jury verdict in a personal injury action. Prior to the jury verdict and judgment, the court, upon the plaintiff’s motion, had directed a verdict in favor of the plaintiff upon the issue of liability. The cause then went to the jury on the issue of damages only. On appeal, the defendant-appellants challenge the trial court’s application of the doctrine of last clear chance in directing a verdict for the plaintiff upon the issue of liability, and the denial of the defendants’ motions for directed verdict as well as their post-trial motion.
The plaintiff’s case consisted of testimony by the investigating officer, an expert witness in the field of traffic analysis, the plaintiff and his wife, and the defendant. After the plaintiff rested his case, the defendant moved for a directed verdict, which was denied. Without putting on any testimony or presenting any evidence, the defendant rested and again moved for a directed verdict upon the sole ground that the only verdict consistent with the law and evidence would be one for the defendant. This motion was likewise denied. The plaintiff thereupon moved for a directed verdict on the issue of liability. The basis of plaintiff’s motion was that there was no question of the defendant’s negligence, and, assuming but not conceding the contributory negligence of the plaintiff, the defendant had the last clear chance to avoid the accident. Assuming the contributory negligence of the plaintiff, the trial judge then concluded that the evidence offered by the plaintiff, when viewed in a light most favorable to the defendant, could only support a verdict for the- plaintiff under the theory that the defendant should have perceived the perilous position of the plaintiff and avoided the accident. Accordingly, the plaintiff’s motion was granted and verdict directed upon the issue of liability.
In substance, the trial judge held upon the issue of liability that the state of the record could support only one verdict by the jury, and that would be for the plaintiff.
Admittedly, there was no conflict in the evidence. The plaintiff contends that since the defendant offered no evidence or testimony and there was no dispute or conflict in the evidence, the plaintiff was entitled as a matter of law to a directed verdict.
The defendant contends that the plaintiff was obviously negligent in proceeding across a black asphalt street, in the nighttime, wearing dark clothes, at an unmarked intersection, without seeing the defendant’s vehicle approaching, and that plaintiff was charged with the samé legal duty as defendant, that is, to see that which he should have seen.
We are unable to concur in the contention of either plaintiff or defendant. However, the fact .that the evidence was undisputed would not alone support a directed verdict for the test on directed verdict is whether or not different reasonable conclusions or inferences could be drawn from the evidence by a jury. See Gravette v. Turner, 77 Fla. 311, 81 So. 476; Bruce Construction Corp. v. State Exchange Bank, Fla.1958, 102 So.2d 288. This would also appear to answer the defendant’s contention that he was entitled to a directed verdict.
The doctrine of last clear chance, which sometimes has been treated as the doctrine of last possible chance, still requires that the defendant have a reasonable opportunity to avoid injury to a plaintiff who has placed himself in a perilous position from which he is unable to extricate himself. See Merchant’s Transportation Co. v. Daniel, 109 Fla. 496, 149 So. 401; Springer v. Morris, Fla.1954, 74 So.2d 781.
A consideration of all the facts involved here compels our conclusion that reasonable minds could differ on the question of whether or not the defendant had the last clear chance to avoid the accident. As was pointed out by this court in Radtke v. Loud, Fla.App.1957, 98 So.2d 891, 894:
“Where findings of fact compatible with the doctrine of last clear chance are within the range of those permissible to be made by the jury on the evidence, the court’s charge should explain the doctrine and authorize its consideration and application by the jury dependent upon their findings establishing applicability.”
Therefore, the issues involved here should be submitted to a jury upon appropriate instructions by the court, including an instruction upon the application of the doctrine of last clear chance.
Accordingly, the judgment appealed from is reversed and the cause is remanded for a new trial.