Gordon v. Cozart (110 So. 2d 75, 1959)

SHANNON, Judge.

This appeal is from a verdict and judgment in favor of the appellee, who was the plaintiff below. The case arose out of an accident occurring on the night of November 21, 1956, in which the husband of the appellee, while crossing highway 17 on foot just south of the town of Mulberry, was struck by an automobile operated by appellant.

The injured man did not die immediately, and the initial action was filed May 6, 1957 in his name. When he did eventually succumb to these injuries on June 13, 1957, this case was amended to be in the name of his wife as administratrix, and thereafter appellee filed an additional action as widow, that case being the subject of a separate appeal.

The accident in question happened about 10:30 o’clock at night, with a variable fog partially obscuring vision, at a point just outside of town, where a used car lot, a grocery store, and a few dwellings and : other miscellaneous buildings were located, ,the exact number and location of which were somewhat in dispute. The decedent had parked his truck on the western shoulder of the road, -and after waiting for two southbound cars to pass proceeded to cross 'the highway, almost reaching the opposite side when he was struck by the defend- ' ant’s car traveling north. According ' to the decedent’s - account of the mishap he started walking across the road and was most of the way over when he realized that car lights were coming up on him fast, fat which point he started to run the rest : of the way, but missing by a foot or less • escaping the oncoming car. The defendant’s testimony was to the effect that immediately after passing a car headed south he observed the decedent for the first time, at a distance of only a few feet scurrying