Miller v. UngarMiller v. Ungar
Lead Opinion
This is аn appeal from a judgment for the defendant based on a jury verdict in an action of tort.
The question is whether the Court errеd by refusing to charge on the doctrine of last clear chance.
The plaintiff, an eleven year old boy, sought recоvery on the following facts. Plaintiff was riding a bicycle on one of the busy streets of the City of Miami. Defendant’s truck was being operаted in the same direction at approximately five miles per hour. It was raining. The left window of the truck was closed making visibility., pоor to the driver, except *80 straight ahead. Two motorcyсles were being towed behind the truck. A helper was on the truck tо assist in towing the motorcycles. Plaintiff’s bicycle passed the truck while it temporarily stopped and started to cross to the curb on the right. Plaintiff glanced back at the then approaching truck and becoming fearful whether he had time to cross in frоnt attempted to turn back to the left and in his confusion fell to thе street.
According to the witnesses the distance from the plаintiff to the truck at the time of plaintiff’s fall varied from two to ten fеet. The driver of the truck did not see plaintiff before the injury. The hеlper on the truck called the driver’s attention by telling him to stoр; that he had run over a little girl. The driver stopped so quickly that the rear wheel did not pass over the plaintiff. The front wheel ran over plaintiff’s leg.
Pleas of not guilty and contributory negligence were filed. The Court did not charge on the doctrine of last clear chance.
The doctrine of last clear chance is recognized in this State, Davis v. Cuesta,
It is the duty of the court to charge the jury on all questions of law growing out of the facts insоfar as they correspond to the pleadings. We have heretofore held that special pleadings are unnecessary to *81 invoke the doctrine of last clear chanсe. Dunn Bus Service, Inc., v. McKinley, supra. The plaintiff’s theory of the case was, that while he might have been negligent in getting himself in a helpless and dangerous position, yet he would have escaped injury had the driver of the truck been exercising lawful care.
Cоnsidering the entire evidence we hold it sufficient to submit plaintiff’s theory of the ease to the jury. The plaintiff’s contention is one rеcognized by law and all parties have a right to have the jury instructed thereon. In this case proper request was made and refused.
It is said that the charge was properly refused under authority of Davis v. Cuesta, supra. The distinction is not difficult. Davis’ negligence as a matter of law continued until the impact. In the case at bar the jury should be permitted to determine whether plaintiff’s nеgligence ceased when he fell to the street.
It is unnecеssary to pass on the other assignments of error.
Reversed.
Dissenting Opinion
dissenting:
Before it became the duty of the trial judge to charge the jury on the doсtrine of the last clear chance, I think the burden was upon the plaintiff to introduce evidence showing, or tending to show, that the defendant’s driver of the wrecker-truck either saw, or (in the exercise of proper care) ought to have seen, the plaintiff’s perilous position. The burden of proof was upon the plaintiff, in this respect, and on *82 this testimony, I do not believe that the plaintiff bore that burden.