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De Wald v. Quarnstrom

Supreme Court of Florida

July 15, 1952; Rehearing Denied August 2, 1952




 [*920]  Per Curiam.


Concur by: CHAPMAN


CHAPMAN, Justice (concurring specially).

This appeal involves the legal sufficiency of an amended declaration. The suit was brought under Section 320.59, F.S.A., by a guest passenger, George E. DeWald, against the host, Bert L. Quarnstrom, operator or driver of the automobile. It was alleged that the motor vehicle was operated in a southeasterly direction on State Highway #25 at about 8:00 o'clock P.M., during the nighttime, when a motor vehicle of Leonard Bros. Transfer & Storage Co., Inc., was negligently stopped or parked upon the traveled portion of the aforesaid highway so as to obstruct the same and with which the automobile in which the plaintiff was riding as a guest passenger collided, thereby causing permanent injuries. The issues presented here are only the legal rights [**2]  of the guest passenger-plaintiff-appellant and the host driver-defendant-appellee.

Pertinent are the following portions of the amended declaration, as amended:

"2. The defendant corporation then and there negligently and carelessly stopped, parked, or left said motor truck unattended or temporarily abandoned on the paved and main travelled part of said highway, without pulling it over on the wide, level, unpaved portion of said highway, adjoining on the right of said vehicle, or without taking other reasonable precautions to prevent injury to the travelling public, so that all of the wheels of said truck were upon the paved highway with its left wheels, to-wit, approximately one and one-half feet from the center of the said highway so that said truck occupied said righthand lane, effectively obstructing the said highway, and said lane against the freepassage of the travelling public and of the automobile in which the plaintiff was then and there riding; and while the defendant's truck was so stopped, parked, or unattended as aforesaid, the defendant corporation negligently and carelessly failed to have lighted lights on its said truck, or warning lights placed on the ground or [**3]  elsewhere, as it was required to do by the Florida Statutes, or negligently failed to have adequate warning lights, or adequate flares placed adequately to the rear of said truck, to give reasonable and sufficient warning of its presence to the travelling public approaching the said truck at night from the rear thereof;

"3. That at the said time and place the defendant Bert L. Quarnstrom who was operating the automobile in which the plaintiff was riding as a guest passenger, was guilty of gross negligence, and operated his said motor vehicle in a grossly careless and negligent manner and that among the acts of negligence or negligent omission constituting the gross negligent operation of said motor vehicle, plaintiff avers the following:

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60 So. 2d 919 *; 1952 Fla. LEXIS 1453 **



motor vehicle, gross negligence, circumstances, truck, highway, amended declaration, travelling, lights