Berger v. Nathan
| Decision Date | 03 July 1953 |
| Citation | 66 So.2d 278 |
| Parties | BERGER v. NATHAN. ROSENBERG et al. v. NATHAN (two cases). |
| Court | Florida Supreme Court |
John E. Porte, Miami Beach, for appellant Morris Berger.
Herman E. Kohen, Miami Beach, and Turnbull & Pepper, Tallahassee, for appellants Dora Rosenberg and Isadore Rosenberg.
Broad & Cassel, Miami Beach, and Cushman, Gay & Woodard, Miami, for appellee.
Three pedestrians while crossing a well-lighted street walked into the path of an automobile which they could easily have seen, but did not, and were struck when the driver did not see them, though he could have.
Three actions were brought but were consolidated for trial and the cases are now presented in one appeal from judgments in favor of the defendant.
In response to the charge that the plaintiffs' injuries were solely caused by the negligence of the defendant in the operation of his motorcar, the defendant pleaded that the plaintiffs' negligence was the lone, as well as the contributory 'cause of the accident.'
We have reviewed all the evidence in this case. There was a material conflict in the testimony of the plaintiffs in the Court below as to the place of impact. Each of them testified that the automobile was close to or next to the curbing when the accident occurred. The physical facts testified to were that immediately after the collision, examination of the scene was made and glass from the right headlight was on the street about 16 or 17 feet from the curbing and immediately in front of or underneath the right headlight itself. Immediately after the accident and before the defendant's car was moved it was standing straddle of the middle street line, approximately 17 feet from the west curb. By actual measurement the street was 38 feet and 5 inches wide. When the car stopped it was approximately 30 feet south of 10th Street. In addition to the oral testimony, the record contains several photographs taken immediately after the collision and before the removal of the injured parties and the automobile driven by the defendant. At the time of the collision the streets were well lighted and any person with normal vision could see an automobile approaching for a distance of three or four hundred feet. There were sufficient conflicts in the evidence and sufficient facts before the jury for reasonable individuals to draw different conclusions, to authorize the submission of the case to the jury on the question of negligence or contributory negligence.
In presenting their questions the appellants contend that the Court erred in submitting to the jury the issue of the defendant's negligence, on the theory, if we understand the brief, that having pleaded contributory negligence the defendant admitted his own negligence and as he showed no negligence on the part of the plaintiffs they should have prevailed.
There is no need to pursue this theory or to discuss further the principle announced in Green v. Atlantic Co., Fla., 61 So.2d 185, because...
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...to instruction made at trial); Gordon v. St. Mary's Hospital, Inc., 305 So.2d 234 (Fla. 4th DCA 1974) (same). See also Berger v. Nathan, 66 So.2d 278 (Fla.1953) (no error in denying new trial where objection raised for first time in motion for new trial); Miller v. Pace, 71 Fla. 274, 71 So.......
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Bishop v. Watson
...and the cause is remanded for entry of judgment on the verdict. 1 Miller v. Pace, 71 Fla. 274, 71 So. 276 (1916); Berger v. Nathan, 66 So.2d 278, 280 (Fla.1953); Omer Corporation v. Duke, 211 So.2d 48 (Fla. 3d DCA 1968); Rose's Stores, Inc. v. Mason, 338 So.2d 1323, 1324 (Fla. 4th DCA 1976)......
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Park v. Belford Trucking Co.
...F.S.A.3 § 59.07(4), Fla.Stat., F.S.A.4 Karl v. Ritter, Fla.App.1964, 164 So.2d 23.5 Rule 2.6(b), F.R.C.P., 31 F.S.A.6 Berger v. Nathan, Fla.1953, 66 So.2d 278; Butler v. Watts, FlaApp.1958, 103 So.2d 123.7 Segars v. Atlantic Coast Line Railroad Company, 286 F.2d 767 (4th Cir. 1961); Patten ......
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Insurance Company of North America v. Mander, 73--786
...Miami, for appellee. Before BARKDULL, C.J., and CARROLL and HAVERFIELD, JJ. PER CURIAM. Affirmed on the authority of Berger v. Nathan, Fla.1953, 66 So.2d 278; H. I. Holding Company v. Dade County, Fla.App.1961, 129 So.2d 693; Park v. Belford Trucking Co., Inc., Fla.App.1964, 165 So.2d 819; ......