M. J. Carroll Contracting Co. v. Brown

PER CURIAM. This is an appeal from a final judgment for plaintiff entered in a negligence action. Plaintiff sued the defendant, appellant herein, for damages which resulted when his automobile ran into an unpaved depression left by defendant, a road contracting company, in a portion of newly constructed highway. The judgment was based on a jury verdict for plaintiff in an amount of $5,500. Defendant appeals. This case is a companion case to M. J. Carroll Contracting Co. v. Pine, Fla.App., 103 So.2d 685, in which case we affirmed a jury verdict in favor of Betty Pine. In this case, Jesse Odell Brown, the ap-pellee, was the driver of the car in which Betty Pine was riding at the time she was injured, so we have an additional factor in this case that was not present in the companion case of M. J. Carroll Contracting Co. v. Pine, supra, which is that of contributory negligence. [471] The appellant, defendant below, would have the burden of proving contributory negligence on the part of the plaintiff. From a study of the evidence and the briefs in this case, we conclude that the alleged contributory negligence of the plaintiff was a matter for the jury. We do not find reversible error in the other points urged by the appellant. We, therefore, affirm the lower court. Affirmed. KANNER, C. J., and ALLEN and SHANNON, JJ., concur.