Opinion
No. 67-325.
June 12, 1968. As Corrected on Denial of Rehearing July 17, 1968.
Appeal from the Circuit Court, Lee County, Lynn Gerald, J.
James A. Franklin, Jr., of Henderson, Franklin, Starnes Holt, Ft. Myers, for appellants.
Frank B. Watson, Jr., of Roberts, Watson, Taylor Friday and Allen, Knudsen, Swartz, Richardson DeBoest, Ft. Myers, for appellee.
Appellants, plaintiffs below, timely file this appeal from a final judgment of the trial court based on a jury verdict rendered in favor of appellee, defendant below. The final orders appealed from are the final judgments in favor of defendant and the denial of appellants' motion for a new trial.
This cause came to trial as a result of an automobile collision involving appellants' decedent, Russell Wesley Young, and appellee's decedent, E.M. Schultz, Jr. The accident occurred in Lee County, Florida, on September 21, 1965.
This appeal centers around two alleged errors of the trial court in giving of instructions to the jury. The first instruction assigned as error by the appellants is the instruction on contributory negligence. We note from the record that an objection was properly raised by the appellants to this instruction at the close of the complete charge to the jury. It was also properly assigned as error in appellants' motion for new trial. However, we also note from the record, as mentioned by the trial court in its order denying the motion for new trial, that this instruction was requested by appellants in their requested instruction number one.
A party cannot assign as error the giving of a charge which he, himself, requested. Bradley v. Associates Discount Corp., Fla. 1952, 58 So.2d 857; Tatum Brothers Real Estate Investment Co. v. McSweeney, 1919, 78 Fla. 89, 82 So. 605. We cannot for the purposes of this appeal consider as error an instruction which appellants have requested and then subsequently assign as error.
Appellant contends that the court below erred in giving the instruction on sudden emergency. Appellant specifically alleges that the evidence as presented was insufficient to warrant the sudden emergency instruction.
We cannot agree with appellants' contention. In looking at the evidence as presented we find that the evidence was sufficient in establishing the presence of the third car and its relationship to the accident in question. Ordinarily the presence or absence of a sudden emergency is a fact question for the jury. The evidence as presented did show that the factual requirements necessary to support an instruction on the sudden emergency doctrine were present, and we find no error in granting appellee's requested instruction on this doctrine. Dupree v. Pitts, Fla.App. 1964, 159 So.2d 904."
From a careful review of the record we find sufficient evidence to warrant the submission of this case to the jury for its determination. We do find the evidence sufficient to support the findings of the jury.
We conclude that there is no error in the record or in the rulings of the trial court. We therefore affirm the judgment of the trial court and the order denying the appellants' motion for new trial.
Affirmed.
PIERCE and HOBSON, JJ., concur.