#### Dora RESNICK, Appellant, v. NATIONAL CAR RENTAL SYSTEMS, INC., a Florida corporation, and Gene C. Stimmler, Appellees.

No. 72-64.

District Court of Appeal of Florida, Third District.

Aug. 8, 1972.

Rehearing Denied Sept. 20, 1972.

Horton, Schwartz & Perse, Fuller, Bru-mer, Moss & Cohen, Miami, for appellant.

Preddy, Haddad, Kutner & Hardy, Miami, for appellees.

Before BARKDULL, C. J., and CHARLES CARROLL and HAVER-FIELD, JJ.

PER CURIAM.

Plaintiff seeks review of an adverse final judgment rendered pursuant to a jury verdict in a pedestrian personal injury case.

The accident occurred at the intersection of 17th Street and Washington Avenue in Miami Beach, Florida when plaintiff, an eighty year old woman, attempted to cross the street and was struck by defendants’ automobile. Both parties allege they were given the right of way in the intersection by the favorable traffic signal. Defendant, exercising reasonable care, was law*75fully proceeding east on 17th Street and was halfway through the intersection when he saw plaintiff proceeding south in the eastern pedestrian crosswalk approximately one third of the way across the intersection. Defendant, upon seeing plaintiff, immediately applied the brakes but he was not able to avoid hitting the woman. Evasive action by defendant was impossible since turning to' the left would have taken the car straight into plaintiff. Another car passed defendants’ vehicle on the right thereby precluding any maneuver in that direction. At trial the judge refused to instruct the jury on the doctrine of last clear chance and following an adverse jury verdict, plaintiff brings this appeal and seeks a determination of the applicability of this doctrine.

Drivers of automobiles have a duty to look out for pedestrians and to avoid creating hazardous situations. In the instant case the question that arises is whether defendant should have seen plaintiff prior to the time he first saw her and applied his brakes. The record on appeal cannot support an affirmative answer to this question without stepping into the realm of conjecture.

In the recent case of Koch v. Cantin, Fla.App. 1972, 263 So.2d 647, Third District Court of Appeal, Opinion filed June 13, 1972:

> “The rule that emerges from Douglas [v. Hackney, Fla.1961, 133 So.2d 301] and cases which follow, Perdue v. Copeland, Fla. 1969, 220 So.2d 617; Williamson v. Guerra, Fla.App. 1968, 208 So.2d 302; Wiggen v. Bethel Apostolic Temple, Fla.App. 1966, 192 So.2d 796, is that adequate evidentiary support must exist for an instruction on last clear chance to be given. Based upon the facts of the case sub judice, to require the trial judge to instruct the jury on the hypothesis that defendant should have seen decedent in the roadway prior to the time he actually saw him, would be to authorize a verdict entirely upon conjecture.”

Under the facts of the instant case to agree with the appellant’s contention that defendant should have seen appellant prior to the time he actually observed her would in our view extend the degree of reasonable care and vigilance which the law requires.

An examination of plaintiff’s remaining point on appeal does not reveal reversible error.

The judgment appealed herein is affirmed.

Affirmed.

CARROLL, Judge

(dissenting).

When there are facts presented in evidence upon which a jury reasonably could find that a pedestrian in or about to be in a perilous situation was observable to a driver of an automobile from a distance sufficient to have permitted the driver to avoid hitting the pedestrian, if the driver had been exercising due care with reference to the duties of such a driver to pay attention to what was ahead of him, to see that which was there to be seen and to drive his vehicle in a manner so as to have it under control, the charge of last clear chance should be given, and the jury permitted to apply it or reject it, depending upon their findings on the facts bearing on the applicability of the doctrine, as given to them in charge.1 In my opinion this was such a case, and it was error to refuse to give the charge on last clear chance.

To withhold a charge on last clear chance where it should be given in a pedestrian-automobile accident case, is tantamount to directing a verdict for the de*76fendant. This is so because the case then goes to the jury on the issues of negligence of the driver and contributory negligence of the pedestrian, with a charge that the contributory negligence of the latter will preclude recovery, yet in every case where last clear chance may be applicable, the plaintiff will have been negligent, but is to be relieved therefrom if the defendant had the last clear chance.

Where the driver of an automobile, if he were looking ahead to see what is there to be seen, could and should have seen the pedestrian in time to avoid the injury, I do not feel he should be absolved and relieved of the effect of the law of last clear chance, by relying on his own negligent inattention as an excuse for not doing so, or, in such a case by simply saying he did not see the pedestrian until he struck him or her, or until he was so close he could not avoid hitting the pedestrian. In my opinion the judgment in this case should be reversed and the cause remanded for new trial.

1

. In Radtke v. Loud, Fla.App.1957, 98 So.2d 891, 894, the court said:

> “Where findings of fact compatible with the doctrine of last clear chance are within the range of those permissible to be made by the jury on the evidence, the court’s charge should explain the doctrine and authorize its consideration and application by the jury dependent upon their findings establishing applicability.”