RICHARD C. GREENFIELD, BY AND THROUGH HIS NEXT FRIEND, IRVING E. GREENFIELD AND THE MAXWELL COMPANY, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
THEKLA FRANTZ, AS EXECUTRIX OF THE ESTATE OF RUSSELL E. FRANTZ, DECEASED, APPELLEE
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The court held that the jury's verdict was supported by sufficient evidence, and the trial court properly submitted the issue of last clear chance.
Plaintiff was struck by defendant's car while crossing a road at night. Defendant testified he did not see the plaintiff until impact, while another w…
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The defendant appeals a final judgment pursuant to a jury verdict awarded the plaintiff-appellee in a personal injury action. We affirm.
At about 10:00 P.M. on the evening of the accident, plaintiff, a postal employee, parked his special delivery truck on the west side of Alton Road in Miami Beach, Florida. Plaintiff then walked east across the road until he reached a point well past the center line of the street, where he was struck by the automobile driven by defendant. The defendant testified that he did not see the plaintiff until he hit him.
The defendant-appellant presents two points on appeal. The first urges that the court should have directed a verdict for the defendant at the conclusion of the plaintiff’s case. The second urges error upon the giving of a charge on the doctrine of last clear chance.
An examination of the record reveals that the questions of defendant’s negligence and plaintiff’s contributory negligence were properly submitted to the jury. The facts *879in this case are distinguished from the facts in Douglas v. Hackney, Fla.1961, 133 So.2d 301, in that in the Douglas case there was a mere possibility that the plaintiff was visible in the roadway in a position of peril. In the instant case the record establishes that the plaintiff would have been clearly visible to the defendant if he had been looking. The defendant’s testimony that he did not see the plaintiff until he hit him, when the testimony of another witness indicates that the plaintiff could clearly be seen, was a sufficient basis for the jury to find that the proximate cause of the accident was defendant’s inattention.
Since there is evidence in the record as above discussed which afforded a reasonable basis for a finding by the jury that the plaintiff was visible and there to be seen if the defendant had looked, the giving of the instruction on last clear chance was authorized under the decision of the Supreme Court in James v. Keene, Fla.1961, 133 So.2d 297.
Affirmed.
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Connolly v. Wiley C. Steakley, 197 So. 2d 524 (Fla. 1967)…ruction that I have placed on it can be seen in a number of subsequent decisions by the district courts of appeal. Holdsworth v. Crews, Fla.App.1961, 129 So. 2d 153; Frohm v. Metzger, Fla.App.1961, 134 So. 2d 254; Greenfield v. Frantz, Fla.App.1962, 144 So. 2d 878; Naber v. Scott, Fla.App.1963, 149 So. 2d 365; Whitten v. Erny, Fla.App.1963, 152 So. 2d 510; Souvorin v. Lerich, Fla.App.1965, 180 So. 2d 180, 181, and Medlock v. McCoy, Fla.App.1966, 183 So. 2d 267. In each of the cases cited but one, the •distri…
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Wiggen v. Bethel Apostolic Temple, 192 So. 2d 796 (Fla. 3d DCA 1966)…ded for a new trial. Reversed and remanded. . Basden v. Lowery, Fla.App.1966, 182 So. 2d 265; Purdue v. Vogelsang, Fla.App.1964, 166 So. 2d 902; Kravitz v. Morse Auto Rentals, Inc., Fla.App.1964, 166 So. 2d 619; Greenfield v. Frantz, Fla.App.1962, 144 So. 2d 878. See also Williams v. Hutson, Fla.App.1966, 186 So. 2d 558. . Radtke v. Loud, Fla.App.1957, 98 So. 2d 891. . See Baker v. Fletcher, 191 Misc. 40, 79 N.Y.S.2d 580 (1948). . Wise v. Western Union Telegraph Company, Fla.App.1965, 177 So. 2d 765; see…
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Rothrock v. Patasy, 170 So. 2d 81 (Fla. 3d DCA 1964)…r us to decide whether on this appeal we may review the claimed error on the earlier trial. Accordingly, the judgment appealed from is affirmed. Affirmed. . Theriault v. Rogers, Fla.App.1964, 166 So. 2d 820. . Greenfield v. Frantz, Fla.App.1962, 144 So. 2d 878; Radtke v. Loud, Fla.App. 1957, 98 So. 2d 891. . Cf. Nelson v. Ziegler, Fla.1956, 89 So. 2d 780; Coleman v. Phipps, Fla.1955, 82 So. 2d 682.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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- Marlon A. James and Donald v. James, 133 So. 2d 297 (Fla. 1961)
- Douglas v. Hackney, 133 So. 2d 301 (Fla. 1961)