#### Geraldine H. SPACKMAN, Appellant, v. J. Ford LAUMER and Frances H. Laumer, Appellees.

No. L-406.

District Court of Appeal of Florida, First District.

June 11, 1970.

Rehearing Denied July 15, 1970.

S. Perry Penland, Jacksonville, for appellant.

Cox & Webb, Jacksonville, for appellees.

*36JOHNSON, Chief Judge.

This is an appeal from a judgment based upon a jury verdict in favor of the defendants below.

The appellant contends error on the part of the trial court on several grounds, referred to hereinafter.

The first point raised by the appellant is failure of the trial court to grant plaintiff’s motion for directed verdict as to the issue of liability. Admittedly, the evidence in this case is lacking in many respects from which a jury could intelligently render a true decision as to negligence. No one seems to have seen the automobile of the appellee-defendants, until the point of impact with the decedent’s bicycle. The fact that the witnesses did not remember seeing the automobile before the impact or when it passed the intersection of Carlisle Road and Prince Edward Drive, may raise a question of credibility as to such testimony, but the burden of proof being upon the plaintiff, the fact that the jury answered this question adversely to the plaintiff, cannot now be complained of by the plaintiff. The trial court apparently considered it of sufficient conflict as to raise and have it as a jury question. We must agree with the trial court on this point.

The reasons set forth in the preceding paragraph hereof is applicable to and we believe disposes of the second point raised by appellant.

As to point three of appellant, we cannot disagree with the charges to the jury as given on that point. This charge does not do violence to the facts of this particular case.

As to point four, failure of the court to give an instruction on the point that a person cannot avoid legal responsibility by merely failing to see that which to a reasonable and prudent person would be plain and obvious, this point gives us the most trouble in reaching our conclusion herein. The testimony shows that the deceased boy on his bicycle had traveled from Prince Edward Drive south onto Carlisle Road and had gone about one or two car lengths down said road when he was seen pushing himself off the front fender of appellees’ automobile. This was just prior to the fatal fall of the boy. The defendant driver of the appellees’ automobile testified that she never saw the boy on the bicycle until after the accident and she stopped her car and got out and went around to the back of her car, a station-wagon. She admits hearing a noise against the right front side of her car, at a point about at the hinge on the front door and then a bump shortly thereafter. We can understand readily enough that if the boy and the bicycle were not in front of appel-lee driver that she could not have seen them because they were not there. But it is difficult for us to understand how she could have failed to see the boy on the bicycle when he was hitting the front fender of her car, unless she was preoccupied in looking to her left for oncoming traffic or other obstacles to her making a left turn into the school house drive. If this is the reason she did not see the boy at the time of the first impact, it is very reasonable to deduce that she did not see the boy prior thereto for the same reason. This testimony of the appellee, coupled with the testimony of the other witnesses as to when they first saw appellee’s car, and, that being when they saw the deceased boy trying to push off from the car, creates a very delicate balance in the evidence. This balance could very easily be tilted either way by the instructions to the jury, or failure to give instructions, as contended for by the appellant.

Under more weighted or decisive evidence the giving or not giving of a certain instruction might not be error or if error, a harmless one. But with the delicate balance as appears in this case, we are of the opinion that the failure of the court to instruct the jury on the fact that a mere failure to see that which to a reasonable and *37prudent person would be plain and obvious, would not relieve such person of legal responsibility for resulting consequences, became a very material instruction and should have been given.

For the reason stated in the last preceding paragraph, we also feel, and so hold, that under the facts in this case, with the appellee driver of the involved automobile being fully aware of this school approach and the age of children attending this school, we think the trial court should not have stricken from its instruction to the jury the language “the unpredictable and erratic behavior” of children. We are of the opinion that an instruction on negligence generally was insufficient in view of the testimony of the driver that she didn’t see, although she was looking, and heard a noise. She did not stop when she heard the noise and did not see that which it appears from the testimony of others she should have seen, that is, the boy on the bicycle trying to push himself away from her car at or about a spot even with the windshield of the car. Where was the driver looking at that time? Why didn’t she immediately stop with the first bump or noise against her car, in a congested and known school zone, almost at the entrance to the school ? We admit that these are jury questions and therefore properly presented to the jury by the trial court in denying the motions for directed verdicts by both parties, but, again, we reiterate, because of this set of facts, we think and so hold, that the charge as requested by the plaintiff should have been given without the deletion of the above quoted words. Standard Jury Instruction Number 4.12 contained the stricken words and we think should have been given in this case because of the peculiar set of facts adduced at the trial.

We are not unaware of the controlling general law of this state to the effect that where there is conflicting evidence before a jury and sufficient competent evidence to support a verdict that the reviewing court will not substitute its judgment for that of the jury.

In this case, however, we are not substituting our judgment for that of the jury; we are of the opinion that the failure of the court to give the instructions mentioned supra, could have, under the set of facts herein found, had a material effect on the jury’s decision. Therefore we are of the opinion, and so hold, that the verdict and judgment should be set aside and a new trial granted where the jury may again determine the issues of fact under the proper instruction by the trial court as suggested supra.

Reversed and remanded for a new trial.

SPECTOR, J., concurs.

RAWLS, J., dissents.

RAWLS, Judge

(dissenting).

In my opinion this record presents a factual conflict between the plaintiff and defendant which was fairly tried, submitted to a jury for the purpose of resolving same upon proper instructions, and I believe the verdict rendered by the jury should not be upset by an appellate court.

In order to fully express my views it is necessary that certain facts be detailed which do not conform to the statement of facts in the majority opinion. The record reflects that Mrs. Frances Laumer, a school secretary, was driving an automobile owned by her husband, Ford Laumer, south on Carlisle Street at about 5 miles per hour in a school zone. She was contemplating making a left-hand turn into the school driveway several car-lengths from the point where Prince Edward Drive dead ends into Carlisle on her right. She testified that as she approached the intersection there was no bicycle coming out of Prince Edward Drive, and as she passed the intersection she looked ahead and saw that there was no bicycle, nor anyone, on the roadway *38or the right shoulder ahead of her. She slowed to less than 5 miles per hour because she was preparing to turn left into the school driveway. She already had her left turn signal on. A car approached and passed her on her left. She glanced at it, heard a noise on the right side of her car, looked to the right and saw nothing, then felt a bump at the right rear wheel. She stopped and found eight-year-old Mark Earle lying near the edge of the pavement behind her car. She had been traveling about 3 feet from the edge of the pavement proceeding straight down her lane.

Mrs. Davidson was parked on Prince Edward Drive near where it intersects with Carlisle when Mark Earle passed her riding his bike faster than 5 miles per hour. She watched him turn the corner, but a dirt pile and hedge obscured the lower part of his body from view. She continued to watch him and when he fell out of sight, she realized that an automobile was beside him. The vehicle was traveling slower than Mark. Mark was not propelled into the air; he just dropped from sight.

John Marshall, school boy patrol, saw Mark turn from Prince Edward Drive onto Carlisle. He looked away, heard a bump, looked to his right and saw Mark on his bike on the right side of the car, with both hands on the right front fender of the car. He demonstrated to the jury how Mark fell. There is no description of the demonstration in the record. The point where Mark landed was only about two car-lengths from the point where John was standing.

Thus, there is a conflict in the testimony. The jury could have found from one view of the evidence that Mark while attempting to pass the automobile on the right collided with it and fell under the front wheel. The other conclusion which the jury could have reached, and apparently did, was that Mark collided with the automobile, fell under its side, and was run over by the rear wheel. The evidence supports this latter view as fully, if not more so, than that which would have been in favor of the plaintiff. Although a tragic death is involved, the jury was not presented with any great factual conflict. It is the sole function of a jury to resolve factual conflicts, and it is not the prerogative of the trial court nor this court to substitute its view of the facts for that of the jury.

The majority opinion has seized upon a tenuous theory as to the failure of the trial judge to properly instruct. It would be redundant to quote the entire lengthy instructions fairly presented to the jury by the trial judge. The major issue to be resolved by the jury was contained in the trial judge’s instruction, viz.:

> “ * * * the issues for your determination on the claim of Mrs. Spackman against Mr. and Mrs. Laumer are whether Mrs. Laumer was negligent in the operation of the vehicle she was driving and, if so, whether such negligence was a legal cause of the death of the child, Mark H. Earle.”

The jury having resolved this issue contrary to the claim of the plaintiff, it is my opinion that the judgment should have been affirmed.