163 So. 2d 38 | Fla. Dist. Ct. App. | 1964
This is a case produced by a rear-end collision, and the defendant has appealed from an adverse judgment. The Plaintiff, Connie W. Purvis, was riding as a passenger on the right side of the front seat of a motor truck of his employer, Sebring Tile and Terrazzo Company. Another employee, Ernest Ash, was driving the truck;A third employee, Thomas Carter, sat in the middle of the cab. The Sebring Tile and Terrazzo Company truck was stopped on the highway to the rear of a larger truck. A truck driven by Harold D. Deck in the course of his employment for the defendant, Inter-County Telephone & Telegraph Company, ran into the rear of the Sebring Tile and Terrazzo truck.
The complaint alleges that the defendant’s truck driver had operated the truck in a careless and negligent manner and had collided with the vehicle in which plaintiff was riding as a passenger. The defendant’s answer denied all allegations of the complaint and for affirmative defense, the defendant alleged that the plaintiff Purvis was guilty of contributory negligence, by alleging that any injuries sustained by the plaintiff “were caused in whole or in part, or were contributed to, by the negligence or fault or want of care of the plaintiff.”
In due season the plaintiff moved for summary judgment as to liability issue against defendant, based upon the pleadings and depositions in the cause. :Thát motion was granted. Defendant’s motion for rehearing was denied; A jury trial upon the issue of damages sustained' by Purvis resulted in a verdict for the plaintiff in the sum of $125,000.00, and judgment was entered in accord with the verdict. Defendant’s motion for' new trial was denied. By appropriate assignment of error, defendant challenges the trial court’s Order granting plaintiff’s motion for summary judgment as to issue of liability.
It appears from the depositions on file in this cause that plaintiff Purvis was foreman, and that the driver Ash, as well as Thomas Carter, were all employees of Sebring Tile and Terrazzo Company, and were enroute on U. S. Highway No. 98, in Highlands County, to a location in Okeechobee • where they were to lay some tile. In analyzing the depositions of the
When the depositions are thus viewed in the light most favorable to the defendant, it appears that a trial jury could have:
1. Concluded from the statement of defendant’s driver, Deck, that he was exercising all due care under the circumstances ; that the tile truck in which plaintiff was riding was negligently parked on the highway without any lights burning thereon; that existing weather conditions required the burning of lights, and that the negligence of Ash in so parking the tile truck without lights burning thereon was the sole proximate cause of the accident. See Lientz v. Holder, Fla.App., 95 So.2d 505.
2. Concluded that the plaintiff, as foreman of the work crew, was in charge of the truck and its driver, and was guilty of contributory negligence in not attempting to control the conduct of his driver, (a) as to burning of lights under existing conditions of known danger on the highway, or (b) as to parking the truck off the highway before coming to a stop. See Golden v. Harrell, Fla.App., 147 So.2d 350, 352.
The essential facts as presented by the depositions are not beyond dispute in this case. The learned trial judge was, therefore, in error in granting plaintiff’s motion for summary judgment.
The judgment is reversed, and the cause is remanded for a new trial upon the issues of liability and damages.