Nichols v. Rothkopf

• Decision Date: 03 January 1939
• Citation: 185 So. 725,135 Fla. 749
• Court: Florida Supreme Court
• Parties: NICHOLS v. ROTHKOPF.

185 So. 725

135 Fla. 749

NICHOLS v. ROTHKOPF.

Florida Supreme Court

January 3, 1939

Rehearing Denied Jan. 28, 1939.

Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.

Action by Saul Rothkopf against Sam E. Nichols, a sole trader doing business under the firm name and style of Sam Nichols & Son for injuries allegedly sustained in a collision between an automobile and a truck, wherein judgment was entered for defendant. Order granting new trial, and defendant brings error.

Affirmed.

COUNSEL Blackwell & Walker, of Miami, for plaintiff in error.

Albert C. Fordham and Newman T. Miller, both of West Palm Beach, for defendant in error.

OPINION

BUFORD Justice.

The writ of error brings for review order granting new trial pursuant to judgment for defendant in a suit by a passenger in an automobile against the owner of a truck because of alleged injuries to the plaintiff caused by a collision between the automobile in which he was riding and defendant's truck on the highway.

There may be found in the record some evidence that both the driver of the automobile and the driver of the truck were guilty of some negligence, but the learned Circuit Judge said in his order,

'From the evidence, it seems clear that the defendant was guilty of negligence. The apparent finding of the jury was to the effect that the defendant was not guilty of negligence, or that the plaintiff was guilty of contributory negligence or that both were guilty of negligence. This seems to be quite contrary to the manifest weight of the evidence. This plaintiff was a passenger in the automobile. There seems to be nothing about his conduct that should bar his recovery. Particularly is this so, upon such a clear showing of negligence on the part of the driver of the defendant's car, in turning a truck to the left on a public highway in front of approaching traffic, without any adequate warning, and apparently within sight of approaching traffic, which could have been observed in due time, had the defendant's driver looker ahead on the road before making the left-hand turn.'

We find that the record amply supports this finding.

Unless the negligence of the driver of the automobile was the sole proximate cause of the injury, the defendant, if guilty of any negligence contributing to the proximate cause of the injury, would be liable. See Feinstone v. Allison Hospital, 106 Fla. 302, 143 So. 251; Louisville,...