Opinion
February 26, 1952. Rehearing Denied March 25, 1952.
Appeal from the Circuit Court for Dade County, J.N. Morris, J.
Courshon Courshon, Miami Beach, for appellant.
Blackwell, Walker Gray, Miami, for appellee.
This was a personal injury damage suit for injuries allegedly sustained when the appellant was departing from a bus of the appellee. The negligence charged was: "That as the plaintiff herein was alighting from the said bus, the agent, servant, or employee of the defendant herein, so negligently and carelessly closed the door of the said bus upon the body of the plaintiff herein".
The two defenses of the general issue and contributory negligence were filed.
After the pleadings were settled the appellee took the deposition pursuant to notice of one Roy McCraw, disinterested eyewitness, and who at that time was a First Lieutenant in the United States Army. In due course the appellee filed motion for summary judgment and notice of the hearing of the same was given the appellant. In support of said motion the appellee offered the deposition of the witness McCraw and affidavit of Dr. Herman Boughton, and also affidavit of C.R. Butler, the driver of the bus. Appellant offered only one affidavit and that was from one Regina Cohen who was sitting in a seat in the front of the bus. She did not get up out of her seat but simply turned around when she heard a commotion at the rear of the bus where the appellant was alighting from the bus. Witness McCraw was standing at the rear of the bus and very close to the rear door where he had full opportunity to observe what was going on.
Five or six people got off of the bus at this stop and the appellant was the last one to get off. She was stooped over and did not get off the bus facing the street but backed off of the bus with her face turned from the street.
The Circuit Judge upon consideration of all of the pleadings, the deposition, affidavits and counter-affidavit granted the motion of the appellee and entered a summary judgment in its favor.
We have examined the record and find that there was no genuine issue as to any material fact and therefore, summary judgment was correctly entered by the lower Court. See Ryan v. Unity, Inc., Fla., 55 So.2d 117, and Boyer v. Dye, Fla., 51 So.2d 727. Also, Creel v. Lone Star Defense Corp., 5 Cir., 171 F.2d 964.
In addition to the main questions of negligence and contributory negligence, the material question of injury or damages was presented in this case. The affidavit of Dr. Herman Boughton was that there was no injury or damage of any kind whatsoever. Copy of this affidavit was furnished to the appellant and she, herself, did not offer any counter-affidavit or offer any evidence of any kind whatsoever showing any injury or damage.
Affirmed.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.