Bolin v. Ace Discount Co.

PER CURIAM. Plaintiff-appellant Bolin seeks review of an adverse final judgment rendered in a jury trial of his action for personal injuries sustained in an automobile collision. He asserts that the trial court gave a faulty jury instruction; we agree and reverse. The facts are apparently undisputed. Plaintiff was a passenger in an automobile which collided with another vehicle. At the conclusion of all the evidence in a trial stemming from that collision, the judge charged the jury as to the plaintiff’s contributory negligence. The plaintiff’s counsel indicated that there was no contributory negligence at issue, and defense counsel noted that contributory negligence, which had been raised as a defense in the pleadings, was being withdrawn. The court withdrew the contributory negligence instruction and gave a charge as follows: “The question is, was the plaintiff driving his car without any fault . . . ” After a careful review of the record presented and the arguments of counsel, we express the view that the trial court erroneously gave a charge to the jury as to contributory negligence, where the question was not an issue in the case. See: Smith v. McCullough Dredging Company, Fla. App.1963, 152 So.2d 194, 196. The additional instruction given in an attempt to cure the error failed to accomplish the purpose intended. Therefore, for the reasons stated, the judgment appealed is reversed. Reversed.