HAROLD ARTHUR WILDE, APPELLANT,
v.
PERCY WINDELL KELLY, APPELLEE
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A pedestrian struck by an automobile appeals from a directed verdict, arguing the trial court erred in refusing to instruct the jury on the doctrine of "last clear chance." The appellate court affirms, holding that the plaintiff failed to demonstrate the defendant had an opportunity to avoid the accident after the plaintiff placed himself in peril.
The trial court properly refused to charge the jury on the doctrine of "last clear chance" because the plaintiff failed to demonstrate that the defendant had an opportunity to avoid the accident after the plaintiff placed himself in peril. A crucial ingredient of the doctrine is showing the defendant had the last opportunity to avoid the accident, which was not established here.
“A crucial ingredient necessary to bring in the play of the doctrine of last clear chance and to relieve a plaintiff from his own contributory negligence is a showing by the plaintiff that the defendant had the last opportunity to avoid the accident.”
Establishes the required element for applying the last clear chance doctrine
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Join FLexlaw to unlock all legal intelligenceA pedestrian-automobile accident occurred mid-block outside a crosswalk in an area where pedestrians were not anticipated to cross. The plaintiff deli…
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Appellant, plaintiff in the trial court, appeals from an adverse final judgment entered upon a directed verdict at the con-*714elusion of all the evidence, subsequent to the trial judge indicating that he did not find that the doctrine of “last clear chance” was applicable and would not charge the jury on the doctrine. The appellant has appealed from this final judgment and assigned as error the failure to consider giving such a charge under the facts of the instant case.
It appears from the record that this was a pedestrian-automobile accident which occurred in the middle of a block, outside of a pedestrian crosswalk, and in an area where there was no reason for the defendant to anticipate pedestrians to cross this street. At this time the plaintiff deliberately walked through two lanes of stopped traffic and proceeded into the third lane [which contained moving traffic] without looking in the direction from which the defendant’s automobile was proceeding. It is conceded that the plaintiff was guilty of contributory negligence as a matter of law, but it is urged that the defendant had the last chance to avoid the accident.
A crucial ingredient necessary to bring in the play of the doctrine of last clear chance and to relieve a plaintiff from his own contributory negligence is a showing by the plaintiff that the defendant had the last opportunity to avoid the accident. See: Ward v. City Fuel Oil Company, Inc., 147 Fla. 320, 2 So.2d 586; Douglas v. Hackney, Fla.1961, 133 So.2d 301. In viewing the evidence in this record in a light most favorable to. the plaintiff, it is apparent that he failed to demonstrate that the defendant had this opportunity to avoid the accident. The plaintiff placed himself in a position of peril, at most, within 45 feet of the defendant’s oncoming automobile [which was traveling at 25 miles an hour; well within the speed limit] and on a day when the streets were damp from rain. The combination of these events made it impossible for the defendant to stop his vehicle before striking the plaintiff. The defendant having no opportunity to avoid the accident after the plaintiff placed himself in a position of peril, it would have been erroneous to charge the jury with an instruction on the doctrine of last clear chance. See: Becker v. Blum, 142 Fla. 60, 194 So. 275; Lee County Oil Company v. Marshall, Fla.App.1957, 98 So.2d 510. Therefore, the action of the trial judge in granting the directed verdict is hereby affirmed.
Affirmed.
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Citator
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Bailey v. Wilson, 180 So. 2d 492 (Fla. 3d DCA 1965)…pavement, and that she then voluntarily darted into the intersection when the defendant was only 100 feet from her. Therefore, this is not a proper case for the application of the doctrine of last clear chance. Compare Wilde v. Kelly, Fla.App.1964, 160 So. 2d 713; Rodriguez v. Haller, Fla.App.1965, 177 So. 2d 519. If a party'moved against has admitted facts which preclude him from ever obtaining a judgment, then there is no necessity for a trial and a -summary judgment is proper. Connolly v. Sebeco, Fla.195…
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Nackman v. Miessen, 168 So. 2d 711 (Fla. 3d DCA 1964)…tly, that there was no clear factual support for an inference that the appellee driver saw or reasonably should have seen the appellant’s ward sufficiently in advance of the impact to enable her to avoid the injury. See Wilde v. Kelly, Fla.App.1964, 160 So. 2d 713; Douglas v. Hackney, Fla.1961, 133 So. 2d 301. Affirmed.…
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Wilburt Burks v. Grundman, 189 So. 2d 511 (Fla. 3d DCA 1966)…nd take action to avoid striking him. The summary final judgment is affirmed upon authority of the rule stated in Doug [*512] las v. Hackney, Fla.1961, 133 So. 2d 301; Green v. Loudermilk, Fla.App.1962, 146 So. 2d 601; Wilde v. Kelly, Fla.App.1964, 160 So. 2d 713. Appellant’s points directed to the use of appellant’s deposition, and the assessment of costs do not present reversible error. Affirmed.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- LEE Cnty. OIL Co., Inc. v. Marshall, 98 So. 2d 510 (Fla. 1st DCA 1957)
- Becker v. Blum, 142 Fla. 60 (Fla. 1940)
- Dewaine Ward v. City Fuel Oil Co., Inc., 147 Fla. 320 (Fla. 1941)
- Douglas v. Hackney, 133 So. 2d 301 (Fla. 1961)