Falnes v. Kaplan
| Decision Date | 31 January 1958 |
| Citation | 101 So.2d 377 |
| Court | Florida Supreme Court |
| Parties | Jan Einar FALNES, by his next friend, Arne Skagseth, Appellant, v. A. N. KAPLAN, Jr., Terryce S. Kaplan, and Harry S. Kaplan, as co-partners, trading and doing business as Parisian Cleaners & Dyers, a partnership, Appellees. |
Nichols, Gaither, Green, Frates & Beckham and Sam Daniels, Miami, for appellant.
Wicker & Smith and Harry G. Hinckley, Jr., Miami, for appellees.
Granada Boulevard in Coral Gables, at the point where Jan Einar Falnes was struck by a car belonging to the appellees and driven by one of them, is paved with a black asphalt surface. Sidewalks extend along each side and the spaces between the sidewalks and the roadway are planted in grass. The vicinity is occupied by residences so the parkway is not very brightly illuminated.
Jan Einar Falnes and his companion, Arnfinn Taalesen, were cadets in the Norwegian Air Force and were, at the time, clothed in the dark blue uniform of that outfit. Shortly before midnight, the men were going south along the sidewalk on the west side of the boulevard when they came to some places in the walk that were broken and uneven. They continued their course by walking along the edge of the grassy strip next to the pavement.
According to the version the jury evidently accepted, Taalesen, at the time of the mishap, was proceeding on the strip and Falnes about three feet from it in the street.
The car approached the pedestrians from the rear at the approximate rate of 30 miles an hour, and the driver did not see Falnes until he was ten feet, or, at that speed, less than a fourth of a second, away when he swerved to the left in an attempt to avoid striking Falnes, but it was too late.
A Jury returned a verdict for the defendants and this appeal was taken from the judgment. The only question presented here is whether or not the trial judge erred when he declined, in the circumstances we have related, to charge the jury on the doctrine of last clear chance.
It is argued that even if the driver did not see Falnes until he was but ten feet distant the charge should have been given if the driver should have known of Falnes' peril. For support of this position we are referred to our opinion in Merchants' Transportation Co. v. Daniel, 109 Fla. 496, 149 So. 401, 403, that when 'the person in control of a motor vehicle, by keeping a reasonably careful lookout, commensurate with the dangerous character of the motor vehicle while in operation and the nature of the locality, could have discovered and appreciated another's perilous situation in time by the exercise of reasonable care to avoid injuring him, and the injury results from the failure to keep such lookout and to exercise such care, then the last clear chance rule applies * * *.' We quoted this language in Springer v. Morris, Fla., 74 So.2d 781.
Of course, the pedestrian was negligent when he chose to walk on the pavement while there was abundant space to walk elsewhere. His danger was intensified by the fact that, in the nighttime, the color of his uniform blended to a considerable degree with the color of the asphalt surface of the street. Also, he was doubtless aware of the approach of a vehicle from behind because of the light shed around him.
The right of a plaintiff to have a charge given to the jury on the matter of last clear chance cannot be defeated alone by evidence of his negligence however clear it may be, even though there may be a temptation to conclude that he took such poor care of himself he should suffer the consequences. Earnest consideration must be given to the conduct of the defendant despite negligence on the part of the plaintiff. Were we to base a ruling solely on the quoted language, it would appear that if the driver of defendants' car could have perceived the plaintiff's danger in time to prevent striking him, and the injury resulted from the driver's 'failure to keep such lookout' the jury should have been charged to the effect. The plaintiff, now appellant, argues that the jurors should have been given the opportunity to determine whether or not the driver was giving proper attention to the operation of the vehicle when he did not see directly in his path an object the size of a man until he was only ten feet away. But our problem may not be so easily decided.
The doctrine of last clear chance was very simple in its origin and was devised to prevent miscarriage of justice by the harsh rule that one who by his negligence contributed to his own hurt could not in any circumstances recover. In Davies v. Mann, 10 M. & W. 546, 152 Eng.Rep. 588, decided in 1842, often cited as the controversy in which the doctrine originated, is found the statement: 'The principle of law, as deducible from the cases, is, that where an accident is the result of faults on both sides, neither party can maintain an action.' The court then held that the judge correctly charged the jury that the mere negligence of plaintiff's placing his donkey on the highway was not an answer to a claim for death of the animal caused when the defendant's servant struck it with a wagon and horses while driving at a 'smartish pace.' Although, said the court, the donkey may have ben wrongfully on the road, the driver of the horses still was bound to proceed at a rate that would not cause mischief.
In the development of the doctrine by the courts of this country there has been much elaboration of it and there is no purpose in this case further to labor the principle. Certainly such a charge is not to be considered a stereotyped or conventional one to be given generally in actions arising from the operation of automobiles. On occasions we have held that the trial court 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)...
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