Opinion
No. 68-72.
September 27, 1968.
Appeal from the Circuit Court, Polk County, A.H. Lane, J.
Thomas C. Marks, Jr., of Gibbons, Tucker, McEwen, Smith Cofer, Tampa, for appellant.
Richard W. Reeves, of Allen, Dell, Frank Trinkle, Tampa, for appellee.
Plaintiff's husband was killed when his car ran into a train at a rural crossing. She appeals an adverse summary judgment in her wrongful death action.
The only substantial disputed issue of fact is relevant to whether the last clear chance doctrine might apply. Several witnesses testified that decedent slowed down and appeared to be barely moving before running into the front of the moving train. One witness, who may not have had as good a view, testified that decedent appeared to be going at a steady rate of speed prior to hitting the train. While the latter testimony appears the weaker, plaintiff is entitled to a jury trial to resolve this disputed issue of fact. Accordingly, we must reverse.
LILES, C.J., and PIERCE, J., concur.