MORTON MILLER, BY HIS NEXT FRIEND AND FATHER, HARRY MILLER AND HARRY MILLER, INDIVIDUALLY,
v.
ARTHUR A. UNGAR, DOING BUSINESS AS UNGAR BUICK COMPANY
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The Florida Supreme Court reversed a judgment for the defendant in a tort action where an 11-year-old boy was struck by a truck, holding that the trial court erred in refusing to instruct the jury on the doctrine of last clear chance when the evidence was sufficient to allow the jury to determine whether the plaintiff's negligence had ceased before the injury occurred.
The trial court erred by refusing the last clear chance instruction. The evidence was sufficient to submit plaintiff's theory to the jury, and the jury should have been permitted to determine whether plaintiff's negligence ceased when he fell to the street, even though plaintiff may have been negligent in getting into that dangerous position.
“It is the duty of the court to charge the jury on all questions of law growing out of the facts insofar as they correspond to the pleadings.”
Establishes the court's obligation to instruct on applicable legal doctrines when facts and pleadings support it
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Join FLexlaw to unlock all legal intelligenceMorton Miller, 11 years old, was riding a bicycle on a busy Miami street in the rain. A truck operated by defendant Ungar at approximately five miles …
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This is an appeal from a judgment for the defendant based on a jury verdict in an action of tort.
The question is whether the Court erred by refusing to charge on the doctrine of last clear chance.
The plaintiff, an eleven year old boy, sought recovery on the following facts. Plaintiff was riding a bicycle on one of the busy streets of the City of Miami. Defendant’s truck was being operated in the same direction at approximately five miles per hour. It was raining. The left window of the truck was closed making visibility., poor to the driver, except *80straight ahead. Two motorcycles were being towed behind the truck. A helper was on the truck to assist in towing the motorcycles. Plaintiff’s bicycle passed the truck while it temporarily stopped and started to cross to the curb on the right. Plaintiff glanced back at the then approaching truck and becoming fearful whether he had time to cross in front attempted to turn back to the left and in his confusion fell to the street.
According to the witnesses the distance from the plaintiff to the truck at the time of plaintiff’s fall varied from two to ten feet. The driver of the truck did not see plaintiff before the injury. The helper on the truck called the driver’s attention by telling him to stop; that he had run over a little girl. The driver stopped so quickly that the rear wheel did not pass over the plaintiff. The front wheel ran over plaintiff’s leg.
Pleas of not guilty and contributory negligence were filed. The Court did not charge on the doctrine of last clear chance.
The doctrine of last clear chance is recognized in this State, Davis v. Cuesta, 146 Fla. 471, 1 So. (2nd) 475; Merchants’ Transportation Company v. Annie Daniel, 109 Fla. 496, 149 So. 410; Dunn Bus Service, Inc., v. Oradelle McKinley, 130 Fla. 778, 178 So. 865; Miami Beach Railway Company v. Paul E. Dohme, 131 Fla. 171, 179 So. 166; Charles H. Lindsay v. Mrs. M. J. Thomas, 128 Fla. 293, 174 So. 418; Jacob Becker v. Louis Blum, 142 Fla. 60, 194 So. 275.
It is the duty of the court to charge the jury on all questions of law growing out of the facts insofar as they correspond to the pleadings. We have heretofore held that special pleadings are unnecessary to *81invoke the doctrine of last clear chance. Dunn Bus Service, Inc., v. McKinley, supra. The plaintiff’s theory of the case was, that while he might have been negligent in getting himself in a helpless and dangerous position, yet he would have escaped injury had the driver of the truck been exercising lawful care.
Considering the entire evidence we hold it sufficient to submit plaintiff’s theory of the ease to the jury. The plaintiff’s contention is one recognized by law and all parties have a right to have the jury instructed thereon. In this case proper request was made and refused.
It is said that the charge was properly refused under authority of Davis v. Cuesta, supra. The distinction is not difficult. Davis’ negligence as a matter of law continued until the impact. In the case at bar the jury should be permitted to determine whether plaintiff’s negligence ceased when he fell to the street.
It is unnecessary to pass on the other assignments of error.
Reversed.
WHITFIELD, TERRELL, BUFORD, and CHAPMAN, JJ., concur.
BROWN, C. J., and THOMAS, J., dissent.
dissenting:
Before it became the duty of the trial judge to charge the jury on the doctrine of the last clear chance, I think the burden was upon the plaintiff to introduce evidence showing, or tending to show, that the defendant’s driver of the wrecker-truck either saw, or (in the exercise of proper care) ought to have seen, the plaintiff’s perilous position. The burden of proof was upon the plaintiff, in this respect, and on *82this testimony, I do not believe that the plaintiff bore that burden.
THOMAS, J., concurs.
BROWN, C. J.,
dissenting:
Before it became the duty of the trial judge to charge the jury on the doctrine of the last clear chance, I think the burden was upon the plaintiff to introduce evidence showing, or tending to show, that the defendant’s driver of the wrecker-truck either saw, or (in the exercise of proper care) ought to have seen, the plaintiff’s perilous position. The burden of proof was upon the plaintiff, in this respect, and on this testimony, I do not believe that the plaintiff bore that burden.
THOMAS, J., concurs.
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Williams v. Sauls, 151 Fla. 270 (Fla. 1942)…all antecedent acts of negligence remote and immaterial. Fla. Motor Transp. Co. v. Hillman, 87 Fla. 512, 101 So. 31; Merchants Transportation Co. v. Daniel, 109 Fla. 496, 149 So. 401; Davis v. Cuesta, 146 Fla. 471, 1 So. (2nd) 475; Miller v. Ungar, 149 Fla. 79, 5 So. (2nd) 598. In Davis v. Cuesta supra we [*275] approved the refusal of this charge because the plaintiff’s own testimony showed a violation of the criminal law which made a prima facie case of negligence and too, that his negligence in fact ex…
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Falnes v. Kaplan, 101 So. 2d 377 (Fla. 1958)…t committed error in giving the charge, Ippolito v. Brenner, Fla., 72 So. 2d 802; that the court did not err in refusing the charge, Yousko v. Vogt, Fla., 63 So. 2d 193; and that the court erred in rejecting the charge, Miller v. Ungar, 149 Fla. 79, 5 So. 2d 598. We have also held that such a charge should not be given “unless the evidence clearly ■demonstrates its applicability.” Yousko v. Vogt, supra [63 So. 2d 194]. Although certain elements necessary to the applicability of the doctrine have been defin…
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Wawner v. Sellic Stone Studio, 74 So. 2d 574 (Fla. 1954)…as clearly misled to appellant’s harm for the reasons stated by us in a similar case, Williams v. Sauls, 151 Fla. 270, 274, 275, 9 So. 2d 369, 371. See also Merchants’ Transport Co. v. Daniel, 109 Fla. 496, 149 So. 401; Miller v. Ungar, 149 Fla. 79, 5 So. 2d 598. In the case of Williams v. Sauls, supra, the plaintiff’s husband was struck and killed by defendant’s truck. The driver at night [*576] had visibility sufficient to see ahead for nearly a quarter of a mile away. The driver saw deceased when he fir…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Merchs. Transp. Co. v. Daniel, 109 Fla. 496 (Fla. 1933)
- Lindsay v. Mrs. M. J. Thomas, 128 Fla. 293 (Fla. 1937)
- Dunn Bus Serv., Inc. v. Oradelle McKinley, 130 Fla. 778 (Fla. 1937)
- Davis v. Cuesta, 146 Fla. 471 (Fla. 1941)
- Becker v. Blum, 142 Fla. 60 (Fla. 1940)
- The Miami Beach Ry. Co. v. Dohme, 131 Fla. 171 (Fla. 1938)