Opinion
No. 72-135.
October 6, 1972.
Appeal from the Circuit Court for Pinellas County, Charles R. Holley, J.
J. Hagen, and J.B. Thompson, of Fowler, White, Gillen, Humkey, Kinney Boggs, St. Petersburg, for appellant.
H. Glenn Waddell, of Shackleford, Farrior, Stallings Evans, Tampa, and Guy N. Perenich of Muscarella, Perenich Carroll, Clearwater, for appellee.
Wayne Wright, defendant (and counter-plaintiff) below brings this interlocutory appeal from an adverse summary judgment on liability. He contends that the depositions and other evidence in this case left material issues of fact remaining, sufficient to preclude a summary judgment. We agree. The record in this case discloses triable issues at least as to the contributory negligence of appellee, if not as to the negligence of appellant. Therefore, appellant is entitled to a jury trial on the question of liability.
See, e.g., Cohen v. Dennis (Fla.App. 1968), 209 So.2d 465. Also, cf., Stirling v. Sapp (Fla. 1969), 229 So.2d 850.
Reversed and remanded for proceedings not inconsistent herewith.
HOBSON, Acting C.J., and MANN and McNULTY, JJ., concur.