Gardella v. Stone

507 So. 2d 1228, 12 Fla. L. Weekly 1406

• Court: District Court of Appeal of Florida
• Decided: June 4, 1987
• Docket: 86-1348
• Status: Published

Opinion

507 So.2d 1228 (1987)

Venice GARDELLA, Appellant,
v.
Howard STONE, et al., Appellees.

No. 86-1348.

District Court of Appeal of Florida, Fifth District.

June 4, 1987.

Sandra Manjasek and Cliff B. Gosney, Jr., P.A., Daytona Beach, for appellant.

F. Bradley Hassell of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellees.

DAUKSCH, Judge.

This is an appeal from a judgment based upon a directed verdict in a personal injury case.

As appellant, a pedestrian, was crossing a street, she was struck and injured by appellee, the driver of a car. Because there is some evidence in the record from which a jury could have found negligence on the part of the defendant, the trial judge erred in directing a verdict for her. Although the defendant said she never saw the plaintiff, the jury could have properly found that the defendant should have seen the plaintiff and avoided striking her.

The defendant and the plaintiff were both in the roadway a sufficient period of time for each to have seen the other — the plaintiff had walked into the middle of the road and the defendant entered the roadway at least a half-block from the point of impact traveling at a speed of no greater than twenty-five miles per hour. One eyewitness standing fifty to sixty feet from the plaintiff said he could see her and some evidence indicates there was sufficient lighting for plaintiff to have been seen and, thus, avoided. Where a jury could have found some degree of fault and liability against the defendant, the trial court should not have directed a verdict for the defendant.

REVERSED and REMANDED.

COBB, J., and LOCKETT, J.T., Associate Judge, concur.