SHANNON, Chief Judge.
The appellant, plaintiff below, appeals from a summary judgment entered on behalf of the defendant, Ann Cafaro Musso, appellee here.
The summary judgment was entered, on the question of liability, on the deposition of defendant taken at the instance of the plaintiff.
It appears from the complaint and the deposition that the plaintiff, Patricia Smith, a minor of nine years of age, was struck by the automobile driven by the defendant in the middle of the block and on the streetway in the daytime. The deposition of defendant shows that defendant was going slowly, but from that point it is almost devoid of any facts. In her deposition the defendant stated:
In her motion for a summary judgment the defendant was required to show by F.R.C.P. 1.36(c), 30 F.S.A., that: "* * * The judgment or decree sought shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law. * * *"
In setting out the rule Judge Sturgis, for the court, in Posey v. Pensacola Tractor & Equipment Company, Fla.App. 1962, 138 So.2d 777, stated:
The facts in this case show a motorist and a pedestrian, with reciprocal rights to the roadway, the defendant driving her car, and the minor plaintiff suddenly appearing, as shown in defendant's testimony. Where the child came from or what she was doing in the middle of the highway, and other such points, were not covered. Insofar as we can see, she had as much right in the roadway as did the defendant, but whether her appearance was sudden, or whether she darted out, is not shown by either the depositions or any of the affidavits.
In Nelson v. Ziegler, Fla. 1956, 89 So.2d 780, which was a directed verdict in the court below and was reversed on appeal, Mr. Justice Thornal, in a comprehensive opinion, stated:
It would seem that in the present case, as in the Nelson case, such facts are necessary for a proper disposition of the action.
The appellants have cited certain cases which involve a motion for directed verdict. When the motions for directed verdict and summary judgment are compared, it will be seen that both motions are directed to a question of law. In Warring v. Winn-Dixie Stores, Fla.App. 1958, 105 So.2d 915, the court, through Mr. Justice Barns, stated:
While the present case is a close one, nevertheless, as this court stated in
KANNER and SMITH, JJ., concur.