Opinion
March 25, 1952.
Appeal from the Circuit Court, Broward County, Lamar Warren, J.
Fowler, White, Gillen, Yancey Humkey, Walter Humkey and Richard B. Adams, all of Miami, for appellant.
Sutton James, Fort Lauderdale, for appellees.
The crux of this case is whether or not the area where the accident occurred was an intersection within the meaning of 317.30, F.S.A., which prohibits a motor vehicle from passing another on the left side of the roadway "When approaching within one hundred feet of or traversing any intersection * * *."
The trial judge ruled as a matter of law that under the evidence the location was not an intersection. He so instructed the jury and refused to give appellant's requested instructions concerning rights and duties of motorists at highway intersections. These rulings are assigned as error.
Here are the facts. The right-of-way of State Road 84 running westward from Ft. Lauderdale is about 200 feet wide. The roadway, or paved portion of the highway, is 20 feet wide and runs along the north side of the right-of-way. A drainage canal parallels the highway on the north. Several years prior to the accident appellant's brother secured permission from the State Highway Department and the Everglades Drainage District to pipe water from the canal under the roadway into a reservoir 19 feet wide and 161 feet long, which he was allowed to excavate a short distance south of the pavement and extending to the south line of the right-of-way for the purpose of irrigating his orange grove, lying contiguous to the south line of the highway.
The lime rock spoil from the excavation was spread over the ground and levelled off forming a hard surfaced area reaching from the pavement of the highway to the reservoir and running along each side thereof to the right-of-way line. A private dirt road lead from the end of the lime rocked area into the grove, which was posted. Members of the public occasionally used the lime rocked area for the purpose of parking their automobiles in order to go fishing in the canal to the north.
It was at the juncture of this lime rocked area with the paved roadway of State Road 84 that appellees were attempting to pass appellant's automobile on the left side of the road when appellant suddenly turned south toward the grove, causing the driver of appellee's car to swerve to the right, or north, and to overturn.
The Statute, 317.01(8), F.S.A., defines intersection as: "* * * the lateral boundary lines of the roadways of two highways which join one another at * * * right angles; or the area within which vehicles traveling upon different highways joining at any other angle may come on conflict." (Italics ours.)
Appellant readily agrees that it takes two different highways to form an intersection, but he argues that the lime rocked area we have described is a highway in and of itself so that its juncture with the roadway of State Road 84 constitutes an intersection as contemplated by 317.30, F.S.A.
The statute, 317.01(22), F.S.A., defines highway as: "The entire width between the boundary of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic."
Clearly, under the statute, the paved area in question was nothing more than a part, or a bay, of State Road 84, since it begins and ends wholly within the boundary of that highway.
The traffic law of Wisconsin is practically the same as ours in its definition of a highway. Although no intersection question was involved, in the case of Payer v. State, 240 Wis. 337, 3 N.W.2d 369, 371, the Supreme Court of that State said: "* * * where a portion of the highway between the roadway and the property line" (of abutting owners) "is paved and available for vehicular travel, this is certainly a part of the highway. Vehicles may use this for the purpose of making turns and other maneuvers incident to the use of the roadway * * *."
We conclude that the trial judge was correct in his determination, as a matter of law, that the location was not an intersection and that he properly removed that issue from the jury. Gosma v. Adams, 102 Fla. 305, 135 So. 806, 78 A.L.R. 1193.
The only other question raised by this appeal is the excessiveness of the verdict of $1500 for the injuries sustained by Pauline Lee, one of the appellees. In the light of the testimony the amount is not so shocking as to justify interference by this court.
Affirmed.
SEBRING, C.J., and TERRELL and THOMAS, JJ., concur.