
    C. J. JONES LUMBER CO., Inc., and Albert Wilder, Appellants, v. Cheryl Lynn MORRISON, Deceased, a Minor, by her Mother, Patricia Morrison Rowe, and Patricia Morrison Rowe, Appellee.
    No. 3017.
    District Court of Appeal of Florida. Second District.
    May 15, 1963.
    Rehearing Denied July 5, 1963.
    See also 126 So.2d 895.
    
      James A. Franklin, Jr., of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.
    Melvin T. Boyd, of Blackwell, Walker & Gray, Miami, for appellee.
   SMITH, Judge.

After the trial of this negligence action in the court below, the jury returned a verdict in favor of the plaintiff, and judgment was entered thereon. The defendants have appealed, contending (1) that the lower ■court erred in failing to grant their motion for directed verdict; and (2) that the verdict and judgment are so contrary to the manifest weight of the evidence that justice requires a new trial. We find merit in the latter contention and reverse.

The plaintiff, Mrs. Rowe, driving a 1950 Chevrolet sedan, left Miami at about noon for a visit in Copeland, which is about seventy miles west of Miami. Accompanying the plaintiff were a Mrs. Garner, two Garner children, and the plaintiff’s infant daughter. After visiting for a while in Copeland, the plaintiff set out on the return trip to Miami, driving easterly on the Tami-ami Trail. During the course of the afternoon, Mrs. Rowe had consumed at least six beers, sometimes drinking at the place of purchase and sometimes drinking as she drove. At approximately 6 :30 P. M., about fifty miles west of Miami, the plaintiff’s automobile collided with a west-bound trailer truck owned by the corporate defendant and driven by Albert Wilder.

At the time of the accident it was already dark. The collision occurred on a section of the Tamiami Trail that was under construction. There was no paved surface on the road, and there was no designated center line. Apparently, there were no traffic control signs. There were some pot holes in the road, and on the southern side of the road (the plaintiff’s side) there were piles of dirt which the plaintiff said extended onto the roadway. Photographs depicting the scene of the accident do not show any piles of dirt extending into the roadway at the point of collision. All of the witnesses testified that the road at this point was wide enough for vehicles to pass. There were no curves or bends in the road for many miles either way.

The plaintiff testified that she had driven for about one-half mile on the section of the road under construction when she first saw the defendant’s vehicle. She stated that, when she first observed it, the approaching vehicle was about one-half mile away and that she thought it was a motorcycle because she saw only one headlight. She testified that she saw no clearance lights on the vehicle. The plaintiff did not realize that the vehicle was a truck until she looked directly at it for the second time, at which point the truck was only six feet away. In explaining why she did not see the truck in the intervening time, Mrs. Rowe could only say that she did not keep her eyes on the approaching vehicle, but on the road. The plaintiff testified that she was driving between thirty-five and forty miles per hour; that she had her headlights operating; and that she was driving about two feet away from the edges of the dirt piles that extended into the roadway.

Both of the truck’s headlights burned on high beam, but on low beam only the right headlight burned. There was a witness traveling in the same direction as the plaintiff (and fairly close behind her) who testified that he saw the truck’s headlights “blink” from low to high beam at least twice. Wilder testified that he switched his headlights from low to high beam because the plaintiff would not “give him dimmers.” Neither the plaintiff nor the witness following her observed the clearance lights on the truck, but Wilder testified that they were on. Wilder stated that he had slowed down to fifteen miles per hour as the two vehicles approached each other and that, when the plaintiff’s car was about fifty feet away, he realized that there was going to be a collision. He decreased his speed to about five miles per hour and then veered slightly to the right. According to Wilder, the plaintiff did not alter the course of her automobile: “There wasn’t any zigzagging. She came as straight as she could into the truck.” The witness following the plaintiff testified that the truck veered to the right just before the collision. Wilder applied his brakes before the collision, but the plaintiff did not. The evidence establishes without contradiction that the left front of the plaintiff’s automobile struck the left side of the truck near the running board and near the left saddle tank at the rear of the cab door.

The exact width of the roadway available for travel to the two vehicles was a question of fact upon which there was some difference. The issue was important because there was a question of whether the plaintiff stayed on “her side” of the road. The highway patrolman who investigated the accident testified as to his actual measurements; other witnesses testified as to their estimates of the width of the road. However, all of the witnesses agreed that there was no paved surface on the roadway and, of course, no center line. Thus, even with measurements, there would be no way to determine exactly where the middle of the road is, for the point of beginning and the point of terminating the measurements would be a matter of opinion and not a matter of certainty. As regards the positions of the vehicles at the moment of impact, the testimony of the witnesses varies. The patrolman stated that the point of impact was eight feet, two inches across and into the defendant’s lane of travel. The plaintiff stated that she was driving “in the middle of the road” to keep clear of the piles of dirt at the roadside. She said that she did not know but “guessed” she hit the truck “over on his side of the road so far as the width of the road is concerned.” She stated that she could not be sure about whose side of the road the collision occurred on because there was no middle line. Such testimony of the plaintiff does not deny or contradict the testimony of the other witnesses. It must be concluded that the testimony establishes that the plaintiff’s automobile was in the defendant’s lane of traffic. The conflict was only as to how far into the defendant’s lane the plaintiff was. Affording every reasonable presumption to the plaintiff’s testimony, the fact remains that she was at least in the middle of the road at the time of the collision.

We cannot say that the undisputed facts show that there was no negligence on the part of the defendant, for the reason that § 317.47,, Florida Statutes, F.S.A., required that the defendant’s truck have two headlights, and § 317.46 Florida Statutes, F.S.A., required that such headlights should have been operating at the time of the accident. The failure to comply with said statutes was prima facie evidence of the defendant’s negligence. Alessi v. Farkas, Fla.App.1960, 118 So.2d 658.

In the first appearance of the instant cause in this Court, Morrison v. C. J. Jones Lumber Co., Inc., Fla.App.1961., 126 So.2d 895, we held that the pertinent portions of § 317.25, Florida Statutes, F.S.A., when considered in the light of the plaintiffs testimony, only precluded a finding that the evidence on behalf of the plaintiff established contributory negligence as a matter of law. Our holding there, however, did not necessarily preclude the entry of a directed verdict in favor of the defendants at the close of all of the evidence, if the defendants’ evidence established, without question of fact, that the accident was proximately caused by the plaintiffs negligence. Furthermore, neither the decision in the first appeal of this cause nor the instant decision should be construed as relieving a driver of a motor vehicle from negligence in leaving his right half of the roadway (even if his right half is closed to traffic while under construction or repair), thereby bringing about a collision with a vehicle proceeding upon the other half of such roadway.

Viewing the evidence as a whole, in the light of the limitations upon the authority to direct a verdict which are fully set out in Brookbank v. Mathieu, Fla.App.1963, 152 So.2d 526, (Third District Court of Appeal), we cannot conclude that the facts here show without material controversy, although it is admittedly a close question, that the negligence of the plaintiff appreciably caused or was the sole proximate cause of the accident, so as to entitle the defendants to a directed verdict.

After careful review of the entire record in this cause; indulging every reasonable presumption in favor of the correctness of the verdict of the jury and the judg-ent rendered by the trial court; bearing in mind that it is the province of the jury to determine disputed questions of fact; considering fully every inference that the jury could logically draw from the evidence; and noting that the trial court placed his stamp of approval thereon by entering judgment and denying defendants’ motions for a new trial, we are compelled to the conclusion that this verdict and judgment does not square with right and justice; that there is reasonable ground to conclude that the jury acted through sympathy,, passion, prejudice, mistake or other unlawful cause and it is our duty to grant a new trial. See Florida Publishing Company v. Copeland, Fla. 1956, 89 So.2d 18; Stanley v. Powers, 1936, 125 Fla. 322, 169 So. 861.

The judgment is reversed with directions to grant the defendants a new trial.

ALLEN, J., concurs.

SHANNON, Chief Judge

(concurring in part and dissenting in part).

I concur in the reasoning of the majority opinion as to the incorrectness of the jury verdict; however, I regret that I must dissent from the result reached by the majority. From the facts and evidence as set out in the majority opinion, and as elaborated upon hereafter, I feel that a verdict should have been directed for the defendants at the conclusion of all of the evidence. I therefore direct my attention to this sole issue.

Involved here is Sec. 317.47, Fla.Stat., F.S.A., which provides that the truck was required to have two headlights; and under Sec. 317.46, Fla.Stat., F.S.A., these lights should have been operating at the time of the accident. The plaintiff’s position in the trial court was that failing to have the lights required by statute, the defendant was prima facie guilty of negligence. Alessi v. Farkas, Fla.App.1960, 118 So.2d 658; Clark v. Sumner, Fla.1954, 72 So.2d 375.

There is another provision of the statutes that comes into play, and that is Sec. 317.-25, Fla.Stat., F.S.A., the pertinent portions of which are set out in the majority opinion. The reversal by this court of the grant of a directed verdict in favor of defendant in the first appearance here of the instant case was grounded primarily upon the statutory exception to the requirement that motor vehicles shall be driven on the right half of the roadway. In our consideration of the case at the time, however, defendant had introduced no evidence, since the verdict was directed at the conclusion of plaintiff’s case.

While there is some testimony to the effect that the construction material was two or three feet on the roadway, the pictures of the scene of the accident taken immediately thereafter show no such material to have been scattered on the roadway itself, and there was no showing in the record that the right half of the roadway was closed to traffic. Even so, if it is assumed arguendo that the road building material was on the plaintiff’s side of the road, she, upon meeting the defendant’s truck, was under the duty to yield to the truck its side of the highway. This rule is set forth in 3 Fla. Jur., Automobiles, Sec.. 142, as follows:

“A motorist driving on his side of the road has the right to assume the person in charge of a vehicle coming from the opposite direction will observe the rules of the road and exercise care to avoid an accident, and to act upon this assumption even though such other ■vehicle may be in the center of the roadway on the wrong side of the road, and it has been stated that when ■collisions occur between vehicles a presumption of negligence arises against the driver who was on the wrong side of the road at the time of the collision.
* * *«

The rule was stated and applied in Car & General Ins. Corporation v. Keal Driveway Co., 5 Cir., 1943, 132 F.2d 834; Zorn v. Britton, 1935, 120 Fla. 304, 162 So. 879; Dania Lumber & Supply Co. v. Senter, 1933, 113 Fla. 332, 152 So. 2; and Florida Motor Lines v. Ward, 1931, 102 Fla. 1105, 137 So. 163.

As to the actual collision, when the plaintiff put on her evidence, one or two witnesses gave estimates as to the width of the road as being about 15 or 16 feet. When the defendants put on their evidence a state highway patrolman testified that he had actually measured with a tape measure the various distances. In addition, there was introduced a photograph taken immediately after the accident showing him in the process of measuring. The trooper’s complete investigation insofar as the accident was concerned was completed within a few hours of its occurrence. According to his measurement, the road at the point of the accident was 26 feet wide. In so testifying, the patrolman had looked at his report to refresh his memory. He also testified, after refreshing his recollection from his report, that the point of impact was 8 feet 2 inches from the center line of the roadway in the right hand lane coming from Miami. This, of course, meant that the collision occurred on the defendant’s side of the road. All of the testimony is that the plaintiff struck the defendant’s truck in a portion which was designated as its “saddle tank.” Of primary concern at this point, however, is whether we should take the patrolman’s actual measurements, or allow a jury verdict to stand which is based in whole or in part on witnesses’ general estimates of distance.

No Florida cases are cited in this regard, but there is a wealth of authority from other jurisdictions to the effect that measured distance must be accepted in lieu of the general estimates of other witnesses. In 32 C.J.S. Evidence § 492, p. 150, it is stated:

“§ 492 Estimates
"In the absence of better evidence, the estimates of a witness are admitted in various connections.
“The court, in discharging its administrative function of securing for the jury the best evidence fairly available, may well, where accurate measurements, weights, or other applications of standards to phenomena are available, reject the estimate of a witness in such matters. * * * ”

In 20 Am.Jur., Evidence, Sec. 802, the following statement appears:

“ * * * Testimony even of disinterested and unimpeached witnesses on subjects of measurement, distance, etc., based merely on memory, estimate, or casual observation, must yield to that which is based on actual measurement.”

See note in 66 A.L.R., p. 1542, and cases therein cited.

In the case of Russell v. Mississippi Central Railroad Company, 1960, 239 Miss. 741, 125 So.2d 283, the court said:

“ ‘The testimony even of disinterested and unimpeached witnesses on the subjects of measurements, distances and the like, which is based merely on memory, estimate or casual observation, must yield to that which is based on actual measurement[s].’ S. H. Kress & Co. v. Sharp, supra [156 Miss. 693, 126 So. [650] 651 [68 A.L.R. 167]].”

In addition to the authorities above cited, see also Illinois Central Railroad Company v. Underwood, 5 Cir., 1956, 235 F.2d 868; Johnson v. Agerbeck, 1956, 247 Minn. 432, 77 N.W.2d 539; Serkowski v. Wolf, 1947, 251 Wis. 595, 30 N.W.2d 223; Borrson v. Missouri-Kansas-Texas R. Co., 1943, 351 Mo. 229, 172 S.W.2d 835; Luettecke v. City of St. Louis, 1940, 346 Mo. 168, 140 S.W.2d 45; Jones v. Reading Co., D.C.Pa. 1942, 45 F.Supp. 566; Copelan v. Stanley Co. of America, 1941, 142 Pa.Super. 603, 17 A.2d 659; and Kessler v. Davis, 1922, 111 Kan. 515, 207 P. 799.

In the instant case the plaintiff’s witnesses who gave their general estimates of distance testified prior to the highway patrolman. Otherwise, their opinion would not properly have been received.

Summarizing the evidence then, it is seen that the plaintiff, who had been drinking beer in the afternoon prior to the accident, although there is no proof of drunkenness,, was proceeding on a highway which was-under repair. As the evidence shows, however, she did not have to detour or leave her own side of the road; yet the accident occurred on the defendant’s side of the road in a situation for which there is no-logical explanation.

It is my opinion that a verdict should have been directed for the defendants at the-conclusion of all of the evidence, and to this extent I dissent from the majority-opinion. 
      
      . “Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:
      
        
      
      “(2) When the right half of a roadway is closed to traffic while under construction or repair.”
     