341 So. 2d 521 | Fla. Dist. Ct. App. | 1976
Lead Opinion
The appellants, defendants in the trial court, seek review of an order of the trial court granting plaintiffs motion for summary judgment in a negligence action.
The instant action arose from a motor vehicle accident which occurred on U.S. 441 in Hollywood, Florida. At the point of the accident, U.S. 441 had three southbound lanes, the centermost southbound lane being a left-turn lane. There are three northbound lanes, with the extreme outside one being a right-turn lane. The north and southbound lanes are separated by a double yellow line painted on the roadway. To the east of the roadway is a shopping complex, including therein a Treasury store, a post office, and a gasoline station. There are driveway entrances into those establishments located to the east of the outside northbound lane.
On the day in question, one Murphins [who was the driver of the vehicle owned by the appellant, Proctor & Gamble, but who is not a party herein] was driving south in the left-turn lane on U.S. 441; he stopped to make a left turn into the Treasury store. There was considerable traffic in the two inside northbound lanes, which was stopped. A panel truck in the middle northbound lane blocked his view of traffic proceeding north on the eastern northbound lane. The driver in the centermost northbound lane was stopped and waved Murphins on and he executed his turn. Upon crossing the two centermost northbound lanes and entering the right-turn lane, he was struck by the appellee’s vehi-
We affirm. See: Cash v. Gates, Fla.App.1963, 151 So.2d 838; Tranter v. Wible, Fla.App.1966, 191 So.2d 595; MacNeill v. Neal, Fla.App.1971, 253 So.2d 263; Walters v. McQueen, Fla.App.1974, 292 So.2d 34. This affirmance is not to be construed as passing any judgment on the negligence, if any, on the part of the plaintiff. The defendant’s answers were not a part of the record in this case and, therefore, we are unable to determine if an issue of comparative negligence was properly presented in the trial court. If it was, then the negligence, if any, of the plaintiff remains to be considered in making any ultimate award. Hoffman v. Jones, Fla.1973, 280 So.2d 431.
This opinion is to be construed only as affirming the trial court’s holding that the defendant was negligent.
Affirmed.
Rehearing
ON PETITION FOR REHEARING GRANTED
This court having granted a petition for rehearing in this cause and heard further argument, it appears that the court overlooked the answer filed by the defendants, which raised the question of comparative negligence. The court also overlooked its decision in Cunningham v. Romano, 278 So.2d 631 (Fla. 3rd DCA 1973). Following review of the Cunningham decision, it appears to be analogous to the instant case and, therefore, we reverse the summary judgment here under review and return the matter to the trial court for a full trial on the issues as to the negligence of each of the parties as made by the pleadings.
In Cunningham v. Romano, supra, the following statement is found at page 633:
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“Having reached the conclusion that there was sufficient evidence of the defendant-driver’s negligence to go to the jury, we must now consider whether the evidence of the plaintiff-driver’s contributory negligence is so clear and un-contradicted that it appears as a matter of law^that the jury must find her con-tributorily negligent. Such a situation is rare in intersectional collision -cases. A holding that a plaintiff is guilty of contributory negligence as a matter of law must be based upon uncontradicted facts. It is admitted that the plaintiff-driver did move into a lane where her view of oncoming traffic was partially blocked. There are inferences which must be drawn from many evidentiary facts in determining the question of contributory negligence here. A jury must determine from all the evidence whether the plaintiff-driver was free from negligence -considering the limited view and the manner in which she entered the lane of traffic. In order to do so, the jury must find from the evidence the size of the opening in traffic, the speed of the defendant-driver, and the care the plaintiff-driver displayed. *' * * ”
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Therefore, the final summary judgment here under review be and the same is hereby reversed, and the matter is returned to the trial court for further proceedings not inconsistent herewith.
Reversed and remanded, with directions.