Rose v. PetersRose v. Peters
Dade County Port Authority engaged Guaranty Roofing Company, hereinafter referred to as “Roofing Company,” to make repairs on Miami International Airport upon a cost plus contract, the Roofing Company
This action was brought by Bertha Rose, widow of Alex J. Rose, to recover damages for his death. The complaint is grounded on the theory that deceased met death in an attempt to rescue his men who were placed in a position of great danger and peril due to the negligence of defendants. Answers to the complaint denied all allegations of negligence and proffered pleas of contributory negligence on the part of decedent. The case came on for trial before a jury but at the close of plaintiff‘s case, the court granted motions for directed verdict in favor of both defendants. A new trial was denied and the plaintiff appealed.
Several questions are urged for determination, but the real issue in the case is whether or not what is known as the “rescue doctrine,” relied on by appellant, is applicable to this case.
It is true that the “rescue doctrine” may be invoked in a personal injury action to offset contributory negligence provided the attempted rescue is not recklessly or rashly done or the defendant was not guilty of negligence to the person rescued nor did such person contribute to his peril by placing himself in a position of danger not necessary to effect the rescue. Lolli v. Market St. R. Co., 43 Cal. App.2d 166, 110 P.2d 436, 438.
We are convinced that the doctrine cannot be invoked here because (1) Mr. Rose was aware of the dangerous condition of the roof for two hours before work was commenced on it but did not warn his men of its dangerous condition. Brown v. Columbia Amusement Co., 91 Mont. 174, 6 P.2d 874; Alabama Power Co. v. Conine, 213 Ala. 228, 104 So. 535. (2) There is no showing here of tortious acts of defendant contributing to the rescue or that the defendant was guilty of negligence to Mr. Rose at any time. Brady v. Chicago & N.W.R. Co., 265 Wis. 618, 62 N.W.2d 415. (3) Mr. Czepiel was fully advised of the damage to the roof of Hangar No. 2 and the danger in accomplishing the repairs to it if not done according to instructions. He was an experienced crew foreman. The Port Authority nor Aerodex, Inc., attempted to instruct Mr. Czepiel as to details of performing the work. The defects in the roof were not latent or concealed; they were obvious. For these and other reasons, we do not think the rescue doctrine has any application here. See Hickory House, Inc., v. Brown, Fla. 1955, 77 So.2d 249, and Bottom v. Rank, Fla. 1954, 70 So.2d 832.
The proffered testimony that is complained of was properly excluded because it was not an exception to the hearsay rule and was not material to a decision of the case. Another reason this testimony was properly excluded is that it could not be tested under cross-examination.
As to objection based on proffer of the insurance policy between Dade County and Maryland Casualty Company, it is sufficient to say that said evidence was properly excluded under the doctrine of Carls Markets, Inc. v. Meyer, Fla. 1953, 69 So.2d 789. Then the Port Authority did not plead governmental immunity and did not attempt to secure reduction of the ad damnum clause to the amount of insurance coverage.
>Affirmed.
DREW, C.J., and ROBERTS and BARNS, JJ., concur.