116 So. 2d 778 | Fla. Dist. Ct. App. | 1960
Joseph Gertler, plaintiff in a personal injury action, appeals from a summary final judgment based upon a complaint, answer and his deposition. The complaint
The controlling question is whether or not Gertler’s action when confronted with the emergency caused by Peterson changing lanes constituted contributory negligence as a matter of law. It has been pointed out that where one so operates his own car that he is not able to stop before running into another vehicle in his lane of traffic, the operator of the following car will be presumed to be guilty o£ negligence. Bellere v. Madsen, Fla.1959, 114 So.2d 619; Kimenker v. Greater Miami Car Rental, Inc., Fla.App.1959, 115 So.2d 191; McNulty v. Cusack, Fla.App.1958, 104 So.2d 785. This rule is a necessary corollary to the duty of a following driver to have his vehicle under such control that he can avoid a collision from any ordinary avoidable situation. However, it is not an absolute rule of liability. It is subject to proof that it does not apply in a particular situation. A sudden emergency which is not ordinarily foreseeable may be such a situation and the existence or nonexistence of the emergency situation is a question of fact for the jury. Therefore the summary judgment may not be supported by the proposition that the plaintiff, Gertler, was guilty of contributory negligence as a matter of law.
There is of course the possible defense that the defendant, Peterson, was not guilty of negligence because his reaction to an emergency situation necessitated his sudden changing of lanes. The deposition of the plaintiff, which is uncon-tradicted, reveals that the plaintiff did not see an emergency situation which would require the defendant to suddenly change lanes. A sudden changing of lanes is negligence when it puts another in a position of peril. Cf. Clark v. Summer, Fla.1954, 72 So.2d 375. This proposition is subject to the qualification that the action of the person changing lanes may be in response to a sudden emergency caused by the negligence of a third person.
The deposition of the plaintiff does not demonstrate as a matter of law the absence of negligence on the part of the defendant or the existence of negligence or contributory negligence on the part of plaintiff. The summary judgment must therefore be reversed.
Reversed.