Dana v. Bursey
| Decision Date | 11 December 1964 |
| Docket Number | No. 5143,5143 |
| Citation | 169 So.2d 845 |
| Parties | James Franklin DANA and the State Road Department of the State of Florida, a corporation, Appellants, v. Ruby Sanders BURSEY, Individually and for the use and benefit of the Springfield Fire and Marine Insurance Company, a corporation, Appellees. |
| Court | Florida District Court of Appeals |
Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.
Roberts, Watson, Taylor & Friday, Fort Myers, for appellees.
BARNS, PAUL D., Associate Judge.
Action for negligence was brought by the appellees against appellants and after an adverse verdict and judgment, the defendants brought this appeal. We affirm.
The action arose out of a collision between an automobile belonging to the road department, being driven by the defendant Dana, and a pickup truck, and Joseph Victor Bursey, a laborer engaged in work on the approach to a new gasoline station immediately adjacent to a state highway. The accident, which resulted in Bursey's death, occurred between sunset and darkness, when Bursey was placing trash in a pickup truck partially parked on the highway with no tail-lights on it. It had been backed on to the highway and Bursey was caught between the two vehicles. Dana did not see the pickup truck before the collision.
One of appellants' grounds for reversal was the lower court's failure to give the requested instruction to the jury hereinafter quoted, and its striking language from other requested instructions relating to the 'assumption of risk' by Bursey, which we will not deal with inasmuch as the point will be covered in treating requested charge No. 4, viz.:
(Emphasis added)
The foregoing requested charge is not a correct statement or application of the law of assumption of risk in an action for negligence. The underscored words make the...
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