WILBURT BURKS, APPELLANT,
v.
CATHERINE VIRGINIA GRUNDMAN, APPELLEE
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The court held that the doctrine of last clear chance did not apply, and affirmed the summary judgment for the defendant driver.
The plaintiff pedestrian was struck by the defendant's car while crossing a dark, unlighted highway at night. The defendant did not see the plaintiff …
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The plaintiff appeals a summary final judgment in an action brought against an automobile driver for injuries received by the plaintiff when plaintiff, a pedestrian, was struck by defendant’s car. Appellant urges that the trial judge erred in entering the summary judgment because the appellant was entitled to the benefit of the doctrine of last clear chance.
Appellant was struck when he ran, or walked rapidly, across an open highway on a dark night, in an unlighted area. The record reveals without genuine issue that the appellee did not see the appellant in sufficient time to avoid striking him. We find no testimony which would substantiate appellant’s allegation that the ap-pellee, driver, should have seen appellant in sufficient time to realize his peril and take action to avoid striking him.
The summary final judgment is affirmed upon authority of the rule stated in Doug*512las v. Hackney, Fla.1961, 133 So.2d 301; Green v. Loudermilk, Fla.App.1962, 146 So.2d 601; Wilde v. Kelly, Fla.App.1964, 160 So.2d 713.
Appellant’s points directed to the use of appellant’s deposition, and the assessment of costs do not present reversible error.
Affirmed.
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Cited By
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Bohlmann v. Booth, 196 So. 2d 507 (Fla. 4th DCA 1967)…e to avoid deceased’s perilous position, were questions to be decided by the jury. Upon comparison of the facts in the case now before the court with those in Connolly v. Steakley, Fla.App.1964, 165 So. 2d 784, and Burks v. Grundman, Fla. App.1966, 189 So. 2d 511, a clear distinction is demonstrated. The present case falls in the category of Whitten v. Erny, Fla.App.1963, 152 So. 2d 510. The difference in the circumstances which warrant the granting of a motion for directed verdict and a motion for new tria…
Authorities Cited
- Douglas v. Hackney, 133 So. 2d 301 (Fla. 1961)
- Green v. Loudermilk, 146 So. 2d 601 (Fla. 2d DCA 1962)
- Wilde v. Kelly, 160 So. 2d 713 (Fla. 3d DCA 1964)