Rivera v. White

386 So. 2d 1233

• Court: District Court of Appeal of Florida
• Decided: July 15, 1980
• Docket: 79-1849
• Status: Published

Opinion

386 So.2d 1233 (1980)

Victor Manuel RIVERA, Gator Freightways and Transport Insurance Company, Appellants,
v.
Marilyn WHITE and John White, Appellees.

No. 79-1849.

District Court of Appeal of Florida, Third District.

July 15, 1980. Rehearing Denied September 10, 1980.

Marlow, Shofi, Ortmeyer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellants.

Franklin, Entin, Kimler & Marks, North Miami Beach, Vogler & Postman, Miami, for appellees.

Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.

PER CURIAM.

The order granting a new trial, which is under review by this appeal, is affirmed upon a holding that: (a) the trial court did not act unreasonably or arbitrarily and, therefore, did not abuse its discretion in granting a new trial herein based on the rule stated in Cloud v. Fallis, 110 So.2d 669 (Fla. 1959), because on this record it was entitled, although not compelled, to conclude, as it did, from its uniquely superior vantage point that the jury verdict herein was against the manifest weight of the evidence in that the evidence established with considerable force, although not without contradiction, that the defendant Victor Rivera "ran a red and/or malfunctioning [traffic] light" under circumstances in which a reasonable man would not have done so and was, therefore, "guilty of some negligence which was a legal cause of [p]laintiffs' damages," which conclusion necessarily means, in our view, that the jury was misled as to the force and credibility of the evidence, Cloud v. Fallis, 110 So.2d at 673; see Christiana v. White, 346 So.2d 1036 (Fla. 4th DCA 1977), and (b) this result is not changed by the fact that the jury's verdict was supported by substantial, competent evidence as an order granting a motion for new trial is not measured on appeal by whether the jury verdict is supported by such evidence, but instead is measured by whether the trial court abused its discretion in granting a new trial, which abuse of discretion we are unable to find in this case. Wackenhut Corp. v. Canty, 359 So.2d 430, 432-433 (Fla. 1978). We also find no merit to the cross-appeal in this cause.

Affirmed.