CORA LEIGH PRUITT AND BURT PRUITT, HUSBAND AND WIFE, APPELLANTS,
v.
HUGH WHELCHEL D/B/A GAME TRAIL RIDING RANCH, APPELLEE
Affirmed.
WALDEN and OWEN, JJ., concur.
CROSS, C. J., dissents, with opinion.
(dissenting).
I must respectfully dissent.
I am of the conviction that the injection in the court’s instructions of the specter of assumption of the risk in the instant case was highly improper and prejudicial to plaintiffs’ case. Jury charges must square with the rule of law arising from the facts developed at the trial of the case. Charges which derive from any other source are apt to mislead the jury. Bashaw v. Dyke, Fla.App.1960, 122 So.2d 507; Bessett v. Hackett, Fla. 1953, 66 So.2d 694; Postal Telegraph & Cable Co. v. Doyle, 1936, 123 Fla. 659, 167 So. 358; Murden v. Miami Poultry & Egg Co., 1934, 113 Fla. 870, 152 So. 714.
The instruction relating to assumption of the risk was not predicated upon facts in proof, nor upon evidence which had been submitted and therefore constituted error.
I would reverse.
CROSS, Chief Judge
(dissenting).
I must respectfully dissent.
I am of the conviction that the injection in the court’s instructions of the specter of assumption of the risk in the instant case was highly improper and prejudicial to plaintiffs’ case. Jury charges must square with the rule of law arising from the facts developed at the trial of the case. Charges which derive from any other source are apt to mislead the jury. Bashaw v. Dyke, Fla.App.1960, 122 So. 2d 507; Bessett v. Hackett, Fla. 1953, 66 So. 2d 694; Postal Telegraph & Cable Co. v. Doyle, 1936, 123 Fla. 659, 167 So. 358; Murden v. Miami Poultry & Egg Co., 1934, 113 Fla. 870, 152 So. 714.
The instruction relating to assumption of the risk was not predicated upon facts in proof, nor upon evidence which had been submitted and therefore constituted error. I would reverse.
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Authorities Cited
- State v. Bohanan, 66 So. 2d 694 (Fla. 1953)
- Postal Tel. & Cable Co. v. Bart Doyle, 123 Fla. 695 (Fla. 1936)
- Bashaw v. Dyke, 122 So. 2d 507 (Fla. 1st DCA 1960)
- Mrs. LaMira Murden v. Miami Poultry & Egg Co., 113 Fla. 870 (Fla. 1934)