Doll v. McCoy , 41 Fla. Supp. 175 ( 1974 )

JAMES R. KNOTT, Circuit Judge.

This is an appeal from the amended final judgment of the county court, Palm Beach County.

It appears that the automobile of appellant, plaintiff below, was struck from the rear by defendant’s car after plaintiff had pulled out from a parked position into the adjoining traffic lane. Plaintiff’s car suddenly stalled as he reached the traffic lane.

Defendant testified that plaintiff “just zipped right out in front of me,” before stalling. During the instant before the collision, defendant, who had also been parked and had just pulled into the traffic lane behind plaintiff, was checking with his rear view mirror for traffic behind him.

Plaintiff-appellant contends that the trial court committed error in failing to find that defendant negligently contributed, to the accident. It is the view of this court, that in checking momentarily for. traffic behind him, rather than keeping his view fixed ahead at all times, defendant was not necessarily guilty of negligence as a matter of law, and that it was within the province of the trial court to find defendant free from negligence in striking the car ahead of him which had appeared suddenly and stalled unexpectedly.

It is therefore ordered and adjudged that said amended final judgment be and the same is hereby affirmed.