Jones v. Crews
| Decision Date | 13 November 1967 |
| Docket Number | No. 827,827 |
| Citation | 204 So.2d 24 |
| Parties | Robert C. JONES, Appellant, v. Vernon L. CREWS, Appellee. |
| Court | Florida District Court of Appeals |
J. Thomas Bowden, of Law Offices of J. Russell Hornsby, Orlando, for appellant.
Eugene L. Roberts, of Howell, Kirby, Montgomery, Sands & D'Aiuto, Rockledge, for appellee.
The plaintiff-appellant, Jones, appeals from a final summary judgment entered in favor of the defendant-appellee, Crews, in a suit for damages arising out of an automobile accident.
Plaintiff, defendant, and a third party departed Orlando, Florida, en route to Cocoa, the defendant driving plaintiff's truck. During the trip the trio consumed some whiskey and a few mixed drinks. To effectuate a joke the defendant drove the truck off the road and went behind a tree and then proceeded to drive the truck back onto the highway. At this time the plaintiff pulled the keys out of the ignition because he was scared by the defendant's maneuver. The defendant explained to the plaintiff that he was not drunk but was just trying to scare the third party. Plaintiff accepted defendant's explanation and returned the keys to him. Defendant continued to drive plaintiff's truck. Approximately an hour and one-half thereafter defendant collided with a truck that was stopped or stopping on the inside northbound lane.
Plaintiff filed complaint alleging the negligence of the defendant in his operation of a motor vehicle owned by the plaintiff and in which plaintiff was riding as a passenger. The defendant answered denying the alleged negligence and set forth contributory negligence and assumption of the risk as affirmative defenses.
The primary thrust of the appeal goes to the issue of whether plaintiff was guilty of contributory negligence and/or had assumed the risk as a matter of law.
The existence of a genuine issue of material fact precludes the entry of summary judgment. The moving party, for the purpose of the motion, admits both established facts favorable to his opponent and reasonable inferences to be drawn therefrom.
It has been recognized by the overwhelming majority that summary judgments must be cautiously granted in negligence cases. Booth v. Mary Carter Paint Company, Fla.App.1966, 182 So.2d 292; Saunders v. Kaplan, Fla.App.1958, 101 So.2d 181; Southern Express Co. v. Williamson, 1913,66 Fla. 286, 63 So. 433. 30 Fla.Jur., Summary Judgment, § 6. Issues of negligence are ordinarily not susceptible of summary adjudication. 6 Moore, Federal Practice, § 56.17(42), at 2583.
On the question of contributory negligence it should be noted that not every act of negligence on the part of a plaintiff will bar his recovery for injuries resulting from the negligence of another. It is only when negligent acts on the part of the plaintiff have a direct and proximate causal relation or contribute in some appreciable degree to the injury that recovery is precluded. Bessett v. Hackett, Fla.1953, 66 So.2d 694.
As to whether or not an act of negligence on the part of plaintiff can be said to have proximately contributed to his injury arising from an accident, the rule is that a...
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...cause of the injury ordinarily presents jury questions precluding summary judgment. 30 Fla.Jur., Summary Judgment, sec. 6; Jones v. Crews, Fla.App.1967, 204 So.2d 24; Lora v. Maule Industries, Inc., Fla.App.1970, 235 So.2d 743; see also McRae v. Winn Dixie Stores, Inc., Fla.App.1969, 227 So......
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