#### Evelyn S. BROWN, Appellant, v. Edward F. FELTS, Appellee.

No. J-126.

District Court of Appeal of Florida. First District.

June 26, 1969.

*333John H. P. Helms, Jacksonville Beach, for appellant.

Francis P. Conroy and Bruce S. Bullock, of Marks, Gray, Yates, Conroy *&*Gibbs, and Blalock, Holbrook, Lewis, Paul & Bennett, Jacksonville, for appellee.

PER CURIAM.

The plaintiff in an automobile negligence action has appealed from a final judgment entered by the Circuit Court for Duval County, based upon a jury verdict for the defendant on her complaint and a verdict for the plaintiff on the defendant’s counterclaim.

The principal question presented for our determination in this appeal is whether the court committed reversible error in refusing to give to the jury two instructions requested by the plaintiff concerning certain speed statutes of the State of Florida.

The accident occurred on Phillips Highway (U.S.l) in Duval County. It is a four-lane divided highway which was described by witness Boatwright, a Florida Highway Patrol trooper, as an ‘‘open highway” having a speed limit of 70 miles per hour. The defendant-appellee admitted that his car was traveling south 60 to 65 miles per hour prior to impact. The evidence reflects that several miles north of the scene of the accident there is a posted 55-mile-per-hour speed zone, but this zone ended with a sign notifying motorists to “Resume Safe Speed.” That sign was three and a half miles north of the point of impact. The next sign reducing the speed limit was two miles south of the point of impact. There is also evidence that in the area there are a number of businesses and residences.

The plaintiff’s two requested instructions, which were denied, would have advised the jury that violation of the following statutory speed limit was prima facie evidence of negligence:

> “Section 317.221 Unlawful Speed

> “(2) (a) The maximum speed limit for motor vehicles on the highways except those a part of the national system of interstate and defense highways, shall be:

> “1. Thirty miles per hour in business or residence districts.”

and

> “Section 317.011 Definitions

> “(4) Business district. The territory contiguous to, and including, a highway when fifty per cent or more of the frontage thereon, for a distance of three hundred feet or more, is occupied by buildings in use for business.

> “(39) Residence district. The territory contiguous to, and including, a highway not comprising a business district when the property on such highway, for a distance of three hundred feet or more, is in the main improved with residences or residences and buildings in use for business.”

Although *general*speed limits have been fixed by Section 317.221, the legislature *334granted authority to municipalities, boards of county commissioners and the State Road Department to vary these statutory speed limits by posting appropriate signs giving notice of the change on roads over which each such agency exercises authority. Sections 317.233 and 317.241, Florida Statutes.

Here we are concerned with U.S. 1, an arterial highway consisting of two southbound lanes and two northbound lanes separated by a median strip and marked by posted speed signs. The legislature has clearly delegated to the State Road Department the primary responsibility of establishing maximum speed limits for the guidance of motorists, and where posted, a motorist is entitled to rely upon same. The statute fixing speed limits for business and residential areas is clearly a catchall provision operative only in the absence of posted speed signs. To hold that a motorist must ignore the signs, keep a constant lookout on each side of this wide highway in order to ascertain whether he is traveling in a residential or business area, and if he determines this to be the case, slow down to a speed of 30 miles per hour and “watch the Fords go by,” would be contrary to the statutory directive and to accepted rules of the road.

The trial court was correct in refusing to instruct the jury as contended by appellant. The judgment is

Affirmed.

RAWLS and JOHNSON, JJ., concur.

CARROLL, DONALD K., Acting C. J., dissents.

CARROLL, DONALD K., Acting Chief Judge

(dissenting).

I must dissent from the majority opinion and judgment for the following reasons:

No rule is more firmly established in the trial of causes at law in this state than that a trial court must charge the jury concerning the law applicable to the cause, basing its instructions “upon the evidence adduced at the trial under the issues drawn by the parties’ pleadings.” See Atlantic Coast Line R. Co. v. Wallace, 61 Fla. 93, 54 So. 893 (1911), Charlotte Harbor & N. Ry. Co. v. Truette, 81 Fla. 152, 87 So. 427 (1921), Bashaw v. Dyke, 122 So.2d 507 (Fla.App.1960), Wynne v. Adside, 163 So.2d 760 (Fla.App.1964), and Richardson v. Sams, 166 So.2d 468 (Fla.App.1964).

One of the most vital issues for the determination of the jury in the case at bar was whether the defendant’s automobile at, or just prior to, the time of the collision was being negligently driven at a rate of speed in excess of the statutory speed limit.

Sec. 317.221(2) (a) (1), Florida Statutes, provides that the maximum speed limit for motor vehicles on the highway except those “a part of the national system of interstate and defense highways” shall be “Thirty (30) miles per hour in business or residence districts.” The terms “business district” and “residence district” are defined in Sec. 317.011, Florida Statutes. The only exception recognized by the statutes as to the said speed limit is in Sec. 317.241(1), which provides that, when the state road department shall determine, upon the basis of an engineering and traffic-. investigation, that the said speed limit is greater or less than is reasonable or safe under the conditions, the department “may determine and declare a reasonable and safe speed limit thereat which shall be effective when appropriate signs giving notice thereof are erected at such intersection or other place or part of the highway.”

At the trial the plaintiff asked the trial court to give the jury two requested instructions, one quoting the contents of Sec. 317.221(2) (a) (1), Florida Statutes, and the other the definitions of residence and business districts in Sec. 317.011. In the former requested instruction, after quoting Sec. 317.221(2) (a) (1), the following sentence was added: “The violation of this *335statute, if any you find, is prima facie evidence of negligence.”

This just-quoted sentence reflects the rule established in this state that the violation of a statute designed to protect life, limb, or property is prima facie evidence of negligence. See our decisions in Williams v. Youngblood, 152 So.2d 530 (Fla.App.1963) and Anchor Hocking Glass Corp. v. Allen, 161 So.2d 853 (Fla.App.1964).

In my opinion, there was ample evidence to support a finding by the jury that the collision in question occurred in a business or residence district within the definitions of those terms in Sec. 317.011. If the jury so found, the statutory speed limit was 30 miles an hour under Sec. 317.221(2) (a) (1) unless the jury found that the highway was part of the national system of interstate and national defense highways.

If the jury could find from the evidence that the highway was a part of the national system of interstate and national defense highways, the court should have charged them concerning the speed limits on such highways as provided by Sec. 317.221(2) (b).

There was ample evidence at the trial from which the jury could reasonably conclude that the defendant’s car was traveling far in excess of 30 miles an hour at the time of the collision — a fact virtually admitted by the appellee in his testimony and brief.

While a patrolman testified to a higher speed limit than that established by Sec. 317.221(2) (a) (1), there is not a word of testimony by anyone to the effect that the State Road Department had increased the statutory speed limit in accordance with the provisions of Sec. 317.241 (1).

As I view the evidence adduced at the trial under the issues drawn by the parties’ pleadings, it was a question of fact for the determination of the jury under proper instructions from the trial court as to the applicable law. One of the highest duties of a 'trial court is thus to advise the jury concerning the law applicable to the case, in order that a jury’s findings may be in conformity with the law. Without such- instructions a jury may be virtually “left in the dark” as to the law they are sworn to uphold.

It is my view, therefore, that the trial court committed reversible error in refusing to give the plaintiff’s said requested instructions in order that the jury might be informed concerning the applicable law so that their findings of fact may conform therewith. I would reverse the final judgment appealed from and remand with directions for a new trial in which the necessary jury instructions would be given.