HomeMy WebLinkAbout1106 recuvery by c~ne~ injured in a motor vehicle accident who is a guest or passen-
~;cr c.~f tlie uwner ur c~perator unl~ss "such accident shatl have been caused by
tlie bross negligence or willful a;;i wanton misconduct ~f the owner or oper-
ator." 'I'he able trial ~udge correctly applied the dictates of the statute.
I-lowever, subsequent to the finai judgment herein appealed and the filing of
the notice uf appeal, the "guest statute" was repealed by Fia. Laws 1972,
ch. 72-1 § 1.
We must, in reviewing a judgment on direct appeal, dispose of the
case according to the law prevailirg at the time of the appellate disposition,
irrespective of the law prevailing at the time of rendition of the judgment
appealed. Florida East Coast Railway Company v. Rouse, I94 So. 2d 260
(F1a.1966). Accordingly, the "guest statute" thus having been repealed, it
is only necessary to allege simple negligence against Ronald Mayer, as
adminisLrator of the Estate of Mark Mayer to state a cause of action.
Ingerson v. State Farm Mutual Automobile Insurance Company, 272 So. 2d
862 (Fla. App.1973); see also General Capital Corporation v. Tel Service-
Co. , 183 So. 2d 1(Fla. App.1966). '
Appellant conten~s that the trial court erred in instructing the jury
on thc ~fefense of assumption of risk. An instruction to the jury on an
affirmative ciefense is proper when requested where sufficient evidence has
~ been introduced from which the jury could lawfully find that the defense has
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i been nroven. See, e. g. , Harwell v. Blake, 180 So. 2d 173 (Fla. App.1965); -
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~ Fla. R. Civ. P. 1. 470(b); 32 Fla. Jur. Trial § 140, et seq. (1960, Supp.1973).
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In the case sub judice, we have carefully examined the testimony relied upon
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; by the appeilees to support the instruction2on assumption of the risk, and ~
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detc;rmined that the cvidence is insufficient to support the instruction as it
is insufficient to show that the plaintiff knew and appreciated the danger. See
; Rartholf v. 13uicer, 71 So. 2d 480 (F1a.195~); J~nes v. Crews, 'l04 So. 2d 2-~
(I~ la. App. 1967). It was, therefore; error for the trial court to instruct the
~ 2. Fl~. Standard Jury Instr. in Civil Cases, Instr. 3. 8(1967).
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