255 So. 2d 714 | Fla. Dist. Ct. App. | 1971
Lead Opinion
Plaintiff, Nuno, appeals from a summary final judgment rendered for defendants Barry Edward Balz and his insurance company.
Florida Highway Patrolman, Marshall, was an eyewitness to the accident which resulted in the negligence complaint filed by Nuno. Marshall was traveling east on the Julia-Tuttle Causeway in the middle lane when he observed a Plymouth station wagon driven by defendant Balz. The station wagon was headed in an easterly direction but was backing up on the causeway. It was approximately 150 to 200 feet in front of Marshall’s patrol car and was backing from the middle lane into the extreme left-hand lane because some aluminum ducts had dropped from it into that lane. The aluminum ducts had been attached to the top of the station wagon.
At about the same time that Marshall observed the station wagon, he saw a 1968 Chevrolet automobile driven by Savarese which had come to a complete stop in the
Nuno testified, on deposition, that when she first observed the patrol car and the Balz station wagon stopped in the left-hand lane, she was at the top of an incline about a block away and could “see from the distance what is going on down it”, At this time she was in the left-hand lane, and upon observing the stopped vehicles, changed to the middle lane. Nuno stated that the police car did not have any emergency lights burning. She said that she was traveling at a speed of 35-40 m. p. h., and as she passed the police car she slowed down to about 20 m. p. h. and looked at the policeman “to see what he was doing sitting in the car”. After passing the police car, she saw the Savarese vehicle suddenly stop in front of her in the middle lane; she applied her brakes and collided with the rear of Savarese’s car.
While the actions of Balz may have been negligent, it also appears the actions of Nuno amounted to contributory negligence as a matter of law. It is obvious that Sa-varese observed the actions of Balz in sufficient time in which to stop his automobile and that Trooper Marshall observed the activity of Balz and Savarese in time to stop his patrol car and to pull from the middle lane into the left lane and to turn on his flashing tail lights and overhead light. If Nuno had been sufficiently observant of the critical situation which existed as a result of the activities of Balz, Savarese and Trooper Marshall, she would have had her car under sufficient control in order to stop without colliding with the rear end of the Savarese vehicle.
We, therefore, affirm the entry of the summary judgment heretofore rendered in this cause. See Pass v. Friedman, Fla.App. 1962, 140 So.2d 883; and Parker v. Hyndman, Fla.App. 1968, 207 So.2d 39.
Affirmed.
Dissenting Opinion
(dissenting),
The determinative question on this appeal from a summary final judgment is whether the moving party has shown conclusively that no material issues remain for trial. I would hold that contributory negligence as a matter of law does not appear without genuine issue in this case. The inference that the appellant was inattentive to the road ahead is within the province of the jury.
