237 F2d 715 Sierra v. Pizaro

237 F.2d 715

Donna Alyne SIERRA, a minor, by and through Richard Sierra,

her stepfather and next friend, and Richard

Sierra, individually, Appellants,


Susan PIZARO, Appellee.

No. 16051.

United States Court of Appeals Fifth Circuit.

Nov. 2, 1956.

Hilton R. Carr, Jr., Herbert A. Warren, Jr., Miami, Fla., for appellants.

Earl Faircloth, T. J. Blackwell, Willis H. Flick, Blackwell, Walker & Gray, Miami, Fla., for appellee.

Before RIVES, TUTTLE and JONES, Circuit Judges.


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Appealing from a judgment based on a jury verdict for the defendant in a personal injury action, the appellant urges: 1. That the district court erred in instructing the jury that the Florida statute F.S.A. § 317.40(2), provides, 'When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right'; and 2. That the court erred in not directing a verdict in favor of the plaintiff. The first insistence is based on the appellant's assumption that the evidence discloses to a certainty that the appellant's car was the first to enter the intersection, with which assumption we do not agree. On the second insistence likewise, we think that the evidence clearly presented a case requiring submission to the jury. The judgment is therefore