G. Ferlita & Sons, Inc. v. Beck

• Decision Date: 21 June 1940
• Court: Florida Supreme Court
• Parties: G. FERLITA & SONS, Inc. v. BECK.

197 So. 340

143 Fla. 509

G. FERLITA & SONS, Inc. v. BECK.

Florida Supreme Court

June 21, 1940

Rehearing Denied July 23, 1940.

En Banc.

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by C. E. Beck against G. Ferlita & Sons, Inc., to recover damages for personal injuries. Judgment for plaintiff, and defendant brings error.

Reversed.

CHAPMAN and THOMAS, JJ., dissenting.

COUNSEL Raney & Raney, of Tampa, for plaintiff in error.

Harold C. Farnsworth and W. S. Phillips, both of Tampa, for defendant in error.

OPINION

BUFORD Justice.

In this case we review judgment for the plaintiff in a tort action for damages resulting from injuries received in an automobile accident.

The record shows that plaintiff Beck was driving south on the highway in Hillsborough County when the accident occurred. It appears that the accident happened in this way:

The defendant's truck was parked, according to a preponderance of the evidence, on the right side of the highway, the left wheels of the truck being on the highway more than one foot from the right edge of the pavement. It was in the night-time and the lights on the truck were burning. The road was straight, level and paved with 22 foot concrete pavement. The truck was visible to persons 600 feet to the north of its position on the highway. Plaintiff Beck approached from the north driving an automobile, according to his statement, at the rate of 45 to 50 miles per hour. He thought the truck was moving, but it was not. When he got near the truck he observed that it was not moving and then turned to the left to avoid colliding with the truck. At the same time another automobile driven by a third party was approaching the same location from the south and that automobile was being driven on the proper side of the road, which was on Beck's left side. Just after Beck passed the truck, and while he was still on the left side of the road to him going south, he collided with the other automobile going north.

The defendant pleaded not guilty and also pleaded contributory negligence, the plea being, 'That at the time of the collision between the automobile driven by plaintiff and an automobile driven by another person in the opposite direction, as alleged in plaintiff's declaration, and immediately prior to the time of such collision, the plaintiff so negligently and carelessly drove and operated his automobile as to proximately contribute to the cause of said collision, and to the damage alleged by plaintiff to have been sustained.'

Other questions are presented which challenge the correctness of the charges given by the Court to the jury but as the infirmity complained of in these charges will probably not occur again, we deem it unnecessary to discuss the contentions of plaintiff in error in this regard.

A careful perusal of the record, in fact an analysis of the plaintiff's testimony, shows that the negligence of the complainant in the operation of his automobile contributed to the proximate cause of the injury and as the plaintiff was guilty of contributory negligence in bringing about the injury, he is barred from recovery. A very similar state of facts was presented in the case Dania Lumber & Supply Co v. Senter et al., 113 Fla. 332, 152 So. 2. The principal difference between the factual conditions in this case and the Senter case is shown by what was said in that opinion.

'It appears that as the plaintiffs were going north on the east side of the highway, the defendant's loaded truck was coming south on the west side of the road. Another car was parked on the west side of the road. When the plaintiffs approached the point where the parked car was, the defendant's truck going south came around the parked car to the east side of the road and collided with the plaintiff's car going north, causing the injury. The plaintiffs were on the right side of the road going north and though they saw the defendant's truck coming south they, being on the proper side of the road, had a right to assume that...