274 A.D. 849 | N.Y. App. Div. | 1948
Judgment and order affirmed, with costs. All concur except Larkin, J., who dissents and votes for reversal and for granting a new trial in- the following memorandum: The Florida statute accords to these plaintiffs, one of whom was a guest of the driver of the car, a cause of action for “ gross negligence or ■ willful and wanton misconduct” only. The Supreme Court of Florida has interpreted “gross negligence” and “willful and wanton misconduct” to be synonymous. It also has held that a recovery cannot be predicated on ordinary' negligence. Under the court’s charge, to which the plaintiff did not except, the jury was instructed in accordance with the construction placed on the statute by the highest court of Florida. While the testimony in this record warrants a finding of negligence on the part of the defendant driver, it fails, in my opinion, to establish the quantum of negligence required by the Florida statute, permitting a recovery by a guest." There was probably enough to warrant a finding that the plaintiff was a passenger without payment for her transportation. (The judgment is for plaintiffs in an automobile negligence action. The order denies defendant’s motion for a new trial.) Present — Taylor, P. J., McCurn, Larkin, Love and Kimball, JJ.
