Burks v. Grundman

PER CURIAM. The plaintiff appeals a summary final judgment in an action brought against an automobile driver for injuries received by the plaintiff when plaintiff, a pedestrian, was struck by defendant’s car. Appellant urges that the trial judge erred in entering the summary judgment because the appellant was entitled to the benefit of the doctrine of last clear chance. Appellant was struck when he ran, or walked rapidly, across an open highway on a dark night, in an unlighted area. The record reveals without genuine issue that the appellee did not see the appellant in sufficient time to avoid striking him. We find no testimony which would substantiate appellant’s allegation that the ap-pellee, driver, should have seen appellant in sufficient time to realize his peril and take action to avoid striking him. The summary final judgment is affirmed upon authority of the rule stated in Doug [512] las v. Hackney, Fla.1961, 133 So.2d 301; Green v. Loudermilk, Fla.App.1962, 146 So.2d 601; Wilde v. Kelly, Fla.App.1964, 160 So.2d 713. Appellant’s points directed to the use of appellant’s deposition, and the assessment of costs do not present reversible error. Affirmed.