Opinion
March 13, 1953. Rehearing Denied April 28, 1953.
An Appeal from the Circuit Court for Hillsborough County; I.C. Spoto, Judge.
Raymond Sheldon and Mabry, Reaves, Carlton, Anderson, Fields Ward, Tampa, for appellant.
Charles Cook Howell, Jr., Jacksonville, LeRoy Allen and Ralph C. Dell, Tampa, for appellees.
Affirmed.
TERRELL, THOMAS, SEBRING and ROBERTS, JJ., concur.
HOBSON, C.J., and DREW, J., dissent.
MATHEWS, J., not participating.
In Seaboard Air Line Railway Co. v. Martin, Fla., 56 So.2d 509, we held that the lower court properly instructed the jury on the doctrine of the last clear chance. We further held that such doctrine applied even though the comparative negligence rule was applicable. In that case we said, "the train almost missed the truck and the difference of a split second meant the difference between life and death." The facts in this case are almost identical to the facts in the above quoted case. In my view, the charge was not only warranted but the denial of it was prejudicial to the plaintiff. I would reverse the judgment for a new trial.