DORRIS W. MCBEE AND RALPH A. MCBEE, HER HUSBAND, APPELLANTS,
v.
EUGENE ALBERT CAIN AND ROBERT RUSSELL REYNOLDS, APPELLEES
The judgment is affirmed. We conclude that under the facts of this case and on the authority of Perdue v. Copeland, Fla.1969, 220 So.2d 617; Morse Auto Rentals, Inc. v. Kravitz, Fla.1967, 197 So.2d 817; and Connolly v. Steakley, Fla.1967, 197 So.2d 524, the court properly declined to give an instruction to the jury upon the doctrine of last clear chance. We are also of the opinion that the procedure followed by the court in reinstructing the jury on a specific point at the jury’s request following a period of deliberation was not error. Zanetti v. Weissler, Fla.App.1965, 179 So.2d 383.
CROSS, C. J., concurs.
WALDEN, J., dissents, with opinion.
(dissenting):
I am of the opinion that the trial court erred, under the facts, in failing to give an instruction upon the doctrine of last clear chance. While, as in many cases, there may be conflicting inferences and evidence, there is a fair basis in the record for the jury to believe that Mrs. McBee’s negligence, if any, had terminated at the time of the collisions. Thus, it was reversible error for the trial court to refuse to give a charge which laid down standards for the jury to follow under varying permissible views of the evidence, where the evidence was inconclusive or conflicting. Holley v. Kelley, Fla.1957, 91 So.2d 862; Barnes v. State, Fla.1957, 93 So.2d 863; Schweikert v. Palm Beach Speedway, Inc., Fla.1958, 100 So.2d 804.
I would reverse and remand for a new trial.
WALDEN, Judge
(dissenting):
I am of the opinion that the trial court erred, under the facts, in failing to give an instruction upon the doctrine of last clear chance. While, as in many cases, there may be conflicting inferences and evidence, there is a fair basis in the record for the jury to believe that Mrs. McBee’s negligence, if any, had terminated at the time of the collisions. Thus, it was reversible error for the trial court to refuse to give a charge which laid down standards for the jury to follow under varying permissible views of the evidence, where the evidence was inconclusive or conflicting. Holley v. Kelley, Fla.1957, 91 So. 2d 862; Barnes v. State, Fla.1957, 93 So. 2d 863; Schweikert v. Palm Beach Speedway, Inc., Fla.1958, 100 So. 2d 804.
I would reverse and remand for a new trial.
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Citator
Cited By
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Brewer v. Apalachicola N. R.R. Co., 303 So. 2d 652 (Fla. 1st DCA 1974)…his decedent, in a wrongful death action] was guilty of negligence that continued up to the time of impact and was a substantial factor in the resulting collision”), Berman Leasing Co. v. Price, 223 So. 2d 362, 364 (Fla.App.3rd 1969); McBee v. Cain, 240 So. 2d 178 (Fla.App.4th 1970); Merchants’ Transp. Co. v. Daniel, 109 Fla. 496, 149 So. 401, 404, 405 (1933), and Parker v. Perfection Cooperative Dairies, 102 So. 2d 645, 646 [*653] (Fla.App.2nd 1958) ; and that, therefore, the defendant railroad company’s ins…
Authorities Cited
- Connolly v. Wiley C. Steakley, 197 So. 2d 524 (Fla. 1967)
- Barnes v. State, 93 So. 2d 863 (Fla. 1957)
- Schweikert v. Palm Beach Speedway, Inc., 100 So. 2d 804 (Fla. 1958)
- Perdue v. Copeland, 220 So. 2d 617 (Fla. 1969)
- Morse Auto Rentals, Inc. v. Kravitz, 197 So. 2d 817 (Fla. 1967)
- Zanetti v. Weissler, 179 So. 2d 383 (Fla. 3d DCA 1965)
- State of Fla. & the Taxpayers v. Special TAX Sch. Dist. No. 1 OF Broward Cnty., 91 So. 2d 862 (Fla. 1956)
- Matter of Joann Resch, 91 So. 2d 862 (Fla. 1957)