No. 61-114.

134 So.2d 280 (1961)

David KERBEN, Appellant, v. FLORIDA POWER & LIGHT COMPANY, a corporation, Appellee.

District Court of Appeal of Florida. Third District.

November 9, 1961.

Attorney(s) appearing for the Case

Nichols, Gaither, Beckham, Colson & Spence, Sam Daniels, Miami, for appellant.

Brigham, Wright, Goodwin & Dence, Miami, for appellee.



The plaintiff appeals a final summary judgment in a personal injury action. The trial court found:

"1. There is a sufficient issue of controverted fact concerning the negligence of the Defendant to stand against the Motion for Summary Judgment. "2. The evidence and the record upon which the Motion for Summary Judgment is based shows that the Plaintiff as a matter of law was guilty of negligence proximately contributing to his own injuries and damages. * * *"

The plaintiff was severely burned when he lowered a TV antenna attached to a fifteen foot mast from a roof over a parapet wall onto uninsulated power lines which were approximately three feet below the level of the top of the parapet wall and approximately ten feet out from the side of the building.

It affirmatively appears from the depositions, affidavits and exhibits before the trial court that the negligence of the plaintiff is so clear under the circumstances as to constitute contributory negligence as a matter of law. E.g., Richmond v. Florida Power & Light Co., Fla. 1952, 58 So.2d 687. Having determined that the judgment of the trial court must be affirmed upon that basis we deem it unnecessary to consider whether the record sustains the finding of the trial judge set forth in Paragraph 1 above quoted, to the effect that there was a sufficient issue concerning the negligence of the defendant. Our holding herein shall not be taken as an expression of opinion thereupon.


CARROLL, J., dissents.


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