SALLY KRAVITZ AND AARON KRAVITZ, APPELLANTS,
v.
MORSE AUTO RENTALS, INC., A CORPORATION, CORT PACKING CORP. OF FLORIDA, INC., AND WILLIAM HEATH, APPELLEES
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Sally Kravitz was struck by a truck's turn signal while crossing in front of the vehicle. The trial court refused to instruct the jury on the doctrine of last clear chance, and the jury returned a verdict for the defendants. The appellate court reversed, holding that the trial court erred in refusing the last clear chance instruction because sufficient evidence existed for a jury to apply the doctrine.
The trial court erred in refusing to charge the jury on the doctrine of last clear chance. The evidence was not so clear and unrefuted as to establish as a matter of law that Kravitz was solely guilty of contributory negligence; rather, sufficient evidence existed from which the jury could have found that the driver saw or should have seen Kravitz's perilous position in time to avoid the accident.
“The evidence as we read it is not so clear, concise and unrefuted that it establishes as a matter of law that the appellant Sally Kravitz was guilty of contributory negligence and that such negligence was the sole proximate cause of her injuries.”
Establishes the court's holding that the evidence did not preclude application of the last clear chance doctrine as a matter of law
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Join FLexlaw to unlock all legal intelligenceSally Kravitz was struck by a right turn signal attached to a truck owned by Morse Auto Rentals, Inc., leased to Cort Packing Corp., and operated by e…
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The appellant Sally Kravitz sustained personal injuries when she was struck by the right turn signal attached to the front of a truck owned by appellee Morse Auto Rentals, Inc., then under lease to appellee Cort Packing Corp., and operated by its employee, appellee Heath.
During the trial, appellants requested the court to charge the jury on the doctrine of last clear chance. This request was refused. The cause was submitted to the jury upon the issue of appellees’ neg*620ligence and the appellant’s contributory negligence. The jury returned a verdict for appellees and upon this verdict a judgment was entered for appellees. The appellants have appealed this judgment.
The appellants seek reversal of the adverse judgment upon the sole ground that the court erred when it refused to charge the jury on the doctrine of last clear chance. We think the appellants’ position is correct and conclude that it was reversible error to refuse to give the charge.
The appellees argue that the evidence discloses that appellant Sally Kravitz was “indifferent” to the approaching traffic and walked in front of the appellees’ truck rendering it impossible for the driver to avoid the accident although he was exercising reasonable care.
Certainly the jury from the evidence, coupled with a charge on contributory negligence, could not be faulted for finding against the appellants, especially in the absence of a charge on last clear chance. We have reviewed the testimony with a view toward a determination as to whether or not “findings of fact compatible with the doctrine of last clear chance are within the range of those permissible to be made by the jury on the evidence * * *1.” It is not for us to say that the jury should apply the doctrine of last clear chance, but only to determine if sufficient evidence is available to the jury upon which a determination can be made as to whether it should apply or refuse to apply the doctrine. The evidence as we read it is not so clear, concise and unrefut-ed that it establishes as a matter of law that the appellant Sally Kravitz was guilty of contributory negligence and that such negligence was the sole proximate cause of her injuries. There is evidence from which the jury could have found that the appel-lee driver saw or should have seen and appreciated in time the perilous position which the appellánt Sally Kravitz occupied and have acted in time to avoid injuring her. The driver admits that he was looking straight ahead from his vehicle without any apparent obstructions to his view and that he did not become aware that the appellant Sally Kravitz was in a perilous position until he was 30-35 feet away from her. From this and other evidence, the jury could have concluded that the driver should have seen Sally Kravitz before he was within 30-35 feet of her in time to avoid the accident. We do not say that the jury should or would find these facts, but only that they are within the range of those permissible to be made by the jury from the evidence. Therefore, it was error for the court to refuse the requested charge on last clear chance.
Upon the authority of Radtke v. Loud, supra, and James v. Keene, Fla.1961, 133 So.2d 297, the judgment appealed should be and is hereby reversed.
Reversed.
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Morse Auto Rentals, Inc. v. Kravitz, 197 So. 2d 817 (Fla. 1967)…PER CURIAM. Petitioners contend that the decision of the District Court of Appeal, Third District, reported at 166 So. 2d 619 is in conflict with the decision in Connolly v. Steakley, Fla.App.1964, 165 So. 2d 784. Both decisions deal with the doctrine of last clear chance. In the Connolly decision the District Court of Appeal, Second District, correctly held that if “ *…
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Wiggen v. Bethel Apostolic Temple, 192 So. 2d 796 (Fla. 3d DCA 1966)…he judgment appealed is reversed and the cause remanded 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…
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Doc Summers Thornton v. Fishbein, 185 So. 2d 774 (Fla. 3d DCA 1966)…Accordingly, the order granting a new trial is reversed and the judgment entered pursuant to the jury verdict is reinstated. Reversed. . Radtko v. Loud, Fla.App.1957, 98 So. 2d 891, 894; see also Kravitz v. Morse Auto Rentals, Inc., Fla.App.1964, 166 So. 2d 619. . State ex rel. Rosanbalm v. Shain, 349 Mo. 27, 159 S.W. 2d 582, 586. . Cloud v. Fallis, Fla.1959, 110 So. 2d 669; Gibson v. Frierson, Fla.App.1963, 159 So. 2d 117.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Marlon A. James and Donald v. James, 133 So. 2d 297 (Fla. 1961)
- Radtke v. Anne L. Loud, 98 So. 2d 891 (Fla. 3d DCA 1957)
- Fed. Nat'l Mortg. Ass'n v. Dade Cnty., 98 So. 2d 891 (Fla. 3d DCA 1957)