Barnard ex rel. Barnard v. Crews

194 So. 2d 44

• Court: District Court of Appeal of Florida
• Decided: January 10, 1967
• Docket: No. H-286
• Status: Published

Opinion

PER CURIAM.

In this negligence action appellants’ principle grievance is the trial judge’s refusal to charge the jury as to the doctrine of last clear chance. This doctrine is applicable only where the defendant has the opportunity to avoid injuring the plaintiff. Here, the only direct evidence reflects that defendant saw the plaintiff, who was riding a bicycle, when he was fifteen feet away from defendant’s automobile. There is no evidence that plaintiff saw defendant or that plaintiff’s negligence ever ceased. Plaintiff contends that if defendant had kept an alert lookout, he would have seen plaintiff in sufficient time to avoid the accident; however, there was positive evidence of obstructions to defendant’s view. Under these circumstances, we cannot hold that the trial judge erred as a matter of law in refusing to give the requested charge as to last clear chance.

We have carefully reviewed the other instructions requested by plaintiff and denied by the court, and find an absence of error.

Affirmed.

RAWLS, C. J., and JOHNSON and SACK, JJ., concur.