#### Austin A. BUCK, Petitioner, v. Joseph LOPEZ et ux., et al., Respondents.

No. 40349.

Supreme Court of Florida.

June 16, 1971.

Rehearing Denied July 12, 1971.

F. Ronald Fraley and Grover Cleveland Freeman, Jr., of Shackleford, Farrior, Stal-lings & Evans, Tampa, for petitioner.

John R, Parkhill and James P. LaRussa, Tampa, for respondents.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Second District, reported at 239 So.2d 103. Jurisdiction is based on conflict between the deci*7sion sought to be reviewed and Vanzant v. Davies1 and Lloyd v. McKenna.2

Respondent herein, plaintiff below, sustained injuries as a result of a collision in the City of Tampa between an automobile operated by the plaintiff and a tractor-truck, operated by the defendant, petitioner herein. Plaintiff brought suit in the Circuit Court, Hillsborough County, alleging negligence on the part of the defendant and the defendant answered denying the pertinent allegations of the complaint and alleging that plaintiff was guilty of contributory negligence. At the outset of the trial, defendant admitted his own negligence thereby limiting the issues to be tried to plaintiff’s contributory negligence and the plaintiff’s compensatory damages, if any. At the close of all the evidence, plaintiff moved for a directed verdict on the issue of contributory negligence. The motion was denied and the jury subsequently returned a verdict in favor of the defendant. On appeal, the District Court reversed and remanded, holding that the plaintiff’s motion for a directed verdict on the question of contributory negligence was improperly denied and that plaintiff should be granted a new trial on the issue of damages.

The evidence submitted in the case is summarized by the District Court in its opinion as follows :3

> “Lopez [plaintiff] and Buck [defendant] were both traveling north on a four-lane street in Tampa at the time of the collision. All the testimony adduced at trial indicated that appellant Lopez was in the right (curb) lane when the accident occurred. Lopez testified that he had stopped for a red light and at the instant he released the brake upon the signal change ‘somebody hit me in the back.’ On cross examination appellant [Lopez] stated that he was moving when he was hit. The testimony of the investigating police officer indicated that appellant’s car was damaged on the left front, left side, and left rear, and that although appellant’s car was in the curb lane, it was thirty to forty feet south of the intersection at which appellant testified he was stopped. The officer further testified that the semi-tractor was jutting into the curb lane and that it was damaged in the area of the right, front wheel.

> “Defendant Buck testified that he was proceeding northward in the center lane when he:

> ‘ * * * turned my right-hand turn signal on, back in here, and started to get over so I could make a right hand turn and get up in here. * * * In doing so, I looked in my rear-view mirror, which was oh, I’d say six inches wide and approximately thirteen inches long; * * * I looked in that and there wasn’t a soul. So, I started to ease over back in here and truthfully, I don’t know where Mr. Lopez’ car came from, but I nipped him; let’s put it that way. And when I hit him, I was partially — my front, right front of the tractor was in this lane.’

> “There was further testimony tending to show that the fender of the semi-tractor had initially struck the front of the Lopez vehicle and that the damage to the Lopez vehicle had occurred in a sideswipe fashion, progressing from front to rear. This, of course, contradicted Lopez’ testimony that he was struck from the rear.

> “In denying appellant’s motion for a directed verdict, the trial court judge was apparently of the opinion that the conflicting versions as to which part of the Lopez vehicle was initially struck created a fact question, pertinent to the issue of contributory negligence, which was for the jury. *Although disputed issues of fact are to be resolved by the jury,*
>       *8
>       *there is no need for its deliberation when the facts in question have no bearing upon the issue of liability or damages. Appellant’s testimony that he was in the right-hand lane prior to and at the time of the accident is unrebutted and cannot be seriously questioned. Whether defendant cut in front of appellant’s vehicle, turned into its side, or hit it from the rear is not controlling on the issue of contributory negligence in this case.*Plaintiff demonstrated that he was proceeding in a normal direction, within normal speed, in his lane of traffic. *No evidence was presented by either party indicating any negligence on appellant’s part."*(e. s.)

The italicized portion of the above-quoted opinion of the District Court ignores the inferences reasonably arising from the Court’s own factual recitation of the accident and creates conflict with Van-zant v. Davies and Lloyd v. McKenna, supra.

Vanzant v. Davies states the following rule *:*
      *4*

> “[U]nder our court system, the jury in an action at law is the trier of the facts and in such capacity resolves the conflicts in the evidence, *as well as the conflicting inferences deducible from the same evidence.*Neither the trial court nor the appellate court is authorized to substitute its judgment for that of the jury as to questions of fact.” (e. s.)

The case of Lloyd v. McKenna5 states the rule that in determining the propriety of a ruling on the motion for directed verdict, the non-moving party is entitled to all reasonable inferences from the evidence.

The application of the foregoing well-recognized rules stated in the *Vanzant*and *Lloyd*cases, supra, to the facts of the instant case, requires that the jury verdict be upheld. The facts of the instant case, as summarized by the District Court in its opinion, are admittedly conflicting. These facts also give rise to materially conflicting inferences on the question of contributory negligence.

The plaintiff testified that he was stopped at the intersection when he was struck from the rear. The defendant’s description of the accident, the investigating officer’s testimony, and the physical evidence indicated a “side-swipe” type collision some thirty to forty feet back from the intersection.

The reasonable inference which can be drawn from the fact that defendant observed no one behind him in the right lane just prior to changing lanes is that the plaintiff’s vehicle was, in fact, immediately behind the tractor operated by the defendant. After the defendant gave the turn signal and began negotiating the lane change, the plaintiff ignored these warnings, entered the righthand (curbside) northbound lane of Nebraska Avenue in an effort to pass the defendant’s tractor before the lane change was completed, and thereby was contributorily negligent. This was the thrust of the defendant’s contention of negligence on the part of plaintiff. The issue was properly submitted to the jury to be weighed and determined by them in reaching their verdict.

Accordingly, certiorari is granted, the decision of the District Court is quashed and the cause remanded with directions to reinstate the judgment of the trial court.

It is so ordered.

ROBERTS, C. J., and CARLTON, McCAIN and DEKLE, JJ., concur.

ADKINS, J., dissents with opinion.

ERVIN, J., dissents and concurs with ADKINS, J.

. 215 So.2d 504 (Fla.App.1st 1968).

. 179 So.2d 583 (Fla.App.3rd 1965).

. Lopez v. Buck, 239 So.2d 103 (Fla.App.1970).

. 215 So.2d 504, 505 (Fla.App.1st 1968).

. 179 So.2d 583 (Fla.App.3rd 1965).

ADKINS, Justice (dissenting) :

In my opinion the writ of certiorari should be discharged as having been improvidently issued.

*9The cases relied upon for conflict jurisdiction, Vanzant v. Davies, 215 So.2d 504 (Fla.App.1st, 1968), and Lloyd v. McKenna, 179 So.2d 583 (Fla.App.3rd, 1965), are easily distinguished upon the facts from the case *sub judice.*

The opinion of the District Court of Appeal in the case *sub judice*does no violence to the principle of law that the jury resolves conflicts in the evidence, as well as the conflicting inferences deducible from the same evidence. There is no conflict of authority between the decisions.

The argument of petitioner, as well as the majority opinion, are primarily upon the merits of the case *sub judice*as opposed to any contention that the decision of the District Court of Appeal brings into existence a conflict of authority in this jurisdiction. Our concern should be with the decision of the District Court of Appeal as precedent as opposed to an adjudication of the rights of the particular litigants.

As stated in Ansin v. Thurston, 101 So.2d 808 (Fla.1958):

> “It was never intended that the district courts of appeal should be intermediate courts. The revision and modernization of the Florida judicial system at the appellate level was prompted by the great volume of cases reaching the Supreme Court and the consequent delay in the administration of justice. The new article embodies throughout its terms the idea of a Supreme Court which functions as a supervisory body in the judicial system for the State, exercising appellate power in certain specified areas essential to the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute.

> “To fail to recognize that these are courts primarily of final appellate jurisdiction and to allow such courts to become intermediate courts of appeal would result in a condition far more detrimental to the general welfare and the speedy and efficient administration of justice than that which the system was designed to remedy.

> 

> “[T]here should be developed consistent rules for limiting issuance of the writ of certiorari to ‘cases involving principles the settlement of which is of importance to the public, as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority’ between decisions. * * * A limitation of review to decisions in ‘direct conflict’ clearly evinces a concern with decisions as precedents as opposed to adjudications of the rights of particular litigants.

> “Similar provisions in the court systems of other states have been so construed : ‘A conflict of decisions * * * must be on a question of law involved and determined, and such that one decision would overrule the other if both were rendered by the same court; in other words, the decisions must be based practically on the same state of facts and announce antagonistic conclusions.’ 21 C.J.S. Courts § 462.” (p. 719)

As to the merits, it appears from the opinion that conflicts in the evidence, and the inferences therefrom, have no material bearing upon the issue of liability or damages. In such an instance, the District Court of Appeal correctly held that disputed issues of fact in an action at law need not be resolved by the jury when they relate to immaterial matters.

ERVIN, J., concurs.