Eastern Steamship Corp. v. Egan

246 So. 2d 609 | Fla. Dist. Ct. App. | 1971

PER CURIAM.

Appellant, defendant below, appeals from a final judgment for money damages resulting from personal injuries to appellee, plaintiff below, entered by the trial court as the result of a trial before the court without a jury. The parties will be referred to as they stood in the trial court.

Defendant’s primary contentions on appeal are: (1) that the trial court erred in striking defendant’s affirmative defense relating to the statute of limitations upon plaintiff’s motion to strike such defense prior to trial, (2) that there is insufficient evidence in the record to sustain a finding of fact by the trial court that the vessel “Ariadne” was owned, operated, maintained or controlled by defendant, Eastern Steamship Corp., and (3) that there is insufficient evidence of any negligence on the part of defendant disclosed by the record.

Plaintiff had been aboard the vessel “Ariadne” to wish friends well prior to their departure on a cruise aboard the ship. While attempting to disembark from the vessel, plaintiff’s leg fell through an opening or gap between the top of the gangplank and the side of the vessel. This opening or gap was covered by red carpeting which ran the length of the gangplank and over the side of the ship.

This court has reviewed the action of the trial court in striking defendant’s affirmative defense of statute of limitations. In view of the posture of the case as presented to the trial judge at the time such order was entered, this court is unable to find reversible error in that connection.

This court has carefully considered the entire record in this case and finds that there is substantial competent evidence to support the finding of the trial court with respect to the operation, maintenance and control of the vessel “Ariadne” by the defendant at the time and place of plaintiff’s injuries ¹ and of the negligence of said defendant. Although this court may have reached a different conclusion on the basis of the evidence disclosed by the record, such evidence does present questions of fact on those issues.

' We have considered the other points raised by defendant on appeal and find that said defendant has failed to demonstrate reversible error and that this cause should be affirmed.

Affirmed.

1 . McCauley v. Eastern Steamship Dines, Inc., Fla.App.1968, 211 So.2d 72.