HENRY THOMAS HARPER, A MINOR, BY HIS NEXT FRIEND, ELEANOR HYZER, AND ELEANOR HYZER, FOR HERSELF, APPELLANTS,
v.
ALBA D. MANGEL, APPELLEE

Fla. 3d DCA | 1963-03-26
No. 62-509
Before PEARSON, TILLMAN, C. J., and CARROLL and BARKDULL, JJ.
151 So. 2d 346 Florida District Court of Appeal, Third District (1963) Positive Treatment
Cited by 14 cases

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Synopsis

This case involves a bicycle-automobile collision where the trial court granted summary judgment for the defendant driver, finding the minor plaintiff was solely negligent in suddenly cutting his bicycle into the defendant's path without warning. The appellate court affirmed, holding that the defendant driver acted as a reasonable, prudent person would have under the circumstances and that the doctrine of last clear chance did not apply.


Holding

The trial court correctly granted summary judgment for the defendant. The plaintiff was guilty of negligence as a matter of law as the sole proximate cause of the accident, while the defendant acted as a reasonable, prudent person would have acted under the circumstances and was not negligent. The doctrine of last clear chance did not apply because the defendant had no reasonable opportunity to prevent the accident after the plaintiff commenced his negligent course of conduct.


Key Quotes

“that the Defendant acted as a reasonable, prudent person would have acted under the circumstances; that the Defendant was not aware of any peril to the Plaintiff nor would any prudent person have been until the Plaintiff suddenly cut his bicycle into the path of the Defendant's automobile and that instantly and simultaneously therewith the Defendant took 'the only instinctly evasive action that appears reasonable under the circumstances'”

Establishes the court's finding that the defendant driver was not negligent and acted reasonably given the sudden and unexpected nature of the plaintiff's bicycle maneuver.

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Facts & Procedural History

A minor plaintiff was riding his bicycle easterly on Ponce de Leon Boulevard, approximately one to one and one-half yards north of the south curb line…

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Opinion of the Court
BARKDULL, Judge.

BARKDULL, Judge.

The appellant, plaintiff in the trial court, by this appeal seeks review of a summary final judgment rendered by the Honorable J. Fritz Gordon, Circuit Judge, wherein the following is found:

“1. That there is no showing of any negligence on the Defendant which proximately caused the accident. There is a showing that at all times *347•material, the Defendant was driving her automobile prudently (20-25 miles per hour), on a clear, dry day and that as the Defendant was attempting to pass the Plaintiff on the left, and when approximately ten (10) yards from the •bicycle, the Plaintiff suddenly and •without warning, cut directly into the Defendant’s path. The witnesses, Nancy Post, Walter Gary and Martha 'Gary, only known ‘eye witnesses’ all testified on deposition that the Plaintiff was bicycling along normally when he ■suddenly and without warning cut into the path of the Defendant’s automobile. It is the view of this Court, taking all of the evidence in the light most favorable to the Plaintiffs that the Defendant acted as a reasonable, prudent person would have acted under the circumstances; that the Defendant was not aware of any peril to the Plaintiff nor would any prudent person have been until the Plaintiff suddenly cut his bicycle into the path of the Defendant’s automobile and that instantly and simultaneously therewith the Defendant took ‘the only instinctly evasive action that appears reasonable under the circumstances’ by cutting her steering wheel to the left and applying her brakes. Quote is from Hormovitis v. Mutual Lumber Co., Fla. App., 120 So.2d 42, at page 46. No facts exist upon which any negligence of the Defendant can be predicated. See Baro v. Wilson, Fla.App., 134 So. 2d 843 (D.C.A.3rd 1961).
“2. The Plaintiff, as a matter of law, is guilty of negligence proximately causing the accident. The Plaintiff’s deposition shows that prior to the accident the Plaintiff was riding his bicycle in an easterly direction on Ponce de Leon Boulevard and was riding approximately one to one and one-half yards north of the south curb line (page 35). On pages 24 and 25 he states that prior to the time that the accident occurred, and prior to the time that he turned his bicycle to the left, he was aware of vehicular traffic behind him and going in the same direction that he was going. He stated, however, that just before he turned to his left he did not know where this vehicular traffic was. T knew it was there but I didn’t know where it was.’ The Plaintiff further stated that he never saw the Defendant’s automobile until he heard the squeal of her tires (pages 26 and 27), although he stated that just before he began his left turn, he turned his body and looked behind him for traffic (pages 31 and 32).
“The doctrine of last clear chance does not apply in this case as contended by counsel for the Plaintiffs and in this regard the Court relies, in part, upon the decisions of Hormovitis v. Mutual Lumber Co., 120 So.2d 42, and Baro v. Wilson, 134 So.2d 843 (D.C.A. 3rd 1961).”

We have examined this record in its entirety and have resolved all conflicts in favor of the party moved against and have given him the benefit of all inferences [all of which we are required to do in reviewing an order granting a motion for summary judgment]. See: Pritchard v. Peppercorn and Peppercorn, Inc., Fla.1957, 96 So.2d 769; White v. Godwin, Fla.App. 1960, 124 So.2d 525. It appears from this record on appeal that the final summary judgment rendered by the trial court was correct in all particulars, and in particular that portion wherein he found that the sole proximate cause of the accident was the plaintiff’s own negligence; that the defendant was not guilty of any negligence and was not possessed of any opportunity to reasonably prevent the accident after the plaintiff himself had commenced a course of conduct which resulted in the injury.

Therefore, the summary final judgment be and the same is hereby affirmed.

Affirmed.


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Citator

Cited By

  • Cora Lee Cline v. Flagler Sales Corp. & O. H. Schwartz, 207 So. 2d 709 (Fla. 3d DCA 1968)
    …dgment. In determining the correctness of the trial court’s ruling, all reasonable inferences from the record are to be taken in the light most favorable to the party moved against in the summary judgment proceedings. Harper v. Mangel, Fla.App.1963, 151 So. 2d 346; Cahill v. Cooney, Fla.App.1966, 182 So. 2d 32. Viewing the record in light of this principle, it reveals the following: The plaintiff purchased a chattel from the defendant, Flagler Sales Corp., and executed a retain title sales contract calling f…
  • Cahill v. Cooney, 182 So. 2d 32 (Fla. 3d DCA 1966)
    …the plaintiff, we fail to find negligence on the part of the defendant and, therefore, find the smmary judgment to have been correctly entered by the trial court. See: Griffis v. DuBow, Fla.App. 1959, 114 So. 2d 207; Harper v. Mangel, Fla.App.1963, 151 So. 2d 346; Lake v. Stiegler, Fla.App.1963, 156 So. 2d 785. The appellants also urge error in the failure of the trial court to grant them additional time to locate and depose another investigating officer. The court’s ruling on this motion clearly indicates…
  • Nicholson v. City OF ST. Petersburg, 163 So. 2d 775 (Fla. 2d DCA 1964)
    …. Miami Transit Company, Fla. App.1960, 125 So. 2d 128; and Kantor v. City of Coral Gables, 1944, 154 Fla. 523, 18 So. 2d 477, together with several other cases setting out the law with reference to directed verdicts: Harper v. Mangel, Fla.App.1963, 151 So. 2d 346; and Farber v. Houston Corporation, Fla.App.1963, 150 So. 2d 732. For the purpose of clarifying the law as it now exists on this particular question, it is necessary for us to examine some of these cases. In the process of such examination, it must…

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