Fernandez v. Kaba

360 So.2d 34 (1978) Verta FERNANDEZ, Appellant, v. Ovidio Edmund KABA et al., Appellees. No. 77-519. District Court of Appeal of Florida, Third District. June 13, 1978. Rehearing Denied July 14, 1978. Horton, Perse & Ginsberg, Stabinski, Funt, Tucker & Levine, Miami, for appellant. Robert L. Dube, Richard M. Gale, Miami, for appellees. Before PEARSON, HENDRY and KEHOE, JJ. PER CURIAM. The plaintiff, Verta Fernandez, appeals a summary final judgment in her action for personal injuries. The uncontroverted evidence is that the plaintiff emerged at midblock near parked cars to cross Flagler Street in Miami and was struck by the defendant's automobile. The deposition of the plaintiff revealed that she could not remember much about what happened. She did not see the approaching automobile. Eyewitnesses could not add much to the facts except that one of them stated that the plaintiff hurriedly stepped out from between parked vehicles. The defendant testified on deposition that he could not avoid the accident even though he applied his brakes as soon as he saw the plaintiff. It affirmatively appears without genuine issue of material fact that the defendant driver was not guilty of actionable negligence. See Swift v. Century Insurance Company of New York, 264 So.2d 88 (Fla.3d DCA 1972); and Gates v. Fien, 219 So.2d 477 (Fla.3d DCA 1969). See also Preger v. Gomory, 55 So.2d 541 (Fla. 1951); Bell v. A.A. Holiday Rent-A-Car, Inc., 304 So.2d 535 (Fla.3d DCA 1974); and Jackson v. Haney, 124 So.2d 719 (Fla.2d DCA 1960). Affirmed. KEHOE, J., dissents.