112 So. 885 (Fla. 1927), City of Jacksonville v. Bell

• Judge: STRUM, J., disqualified, did not participate. STRUM, J., not participating.
• Parties: CITY OF JACKSONVILLE v. BELL.
• Citation: 93 Fla. 936,112 So. 885
• Docket Number: .
• Court: Florida Supreme Court
• Date: 19 April 1927

Page 885

112 So. 885 (Fla. 1927)

93 Fla. 936

CITY OF JACKSONVILLE

v.

BELL.

Florida Supreme Court, Division B.

April 19, 1927

Rehearing Denied May 17, 1927.

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Action by Sarah T. Bell against the City of Jacksonville. Judgment for plaintiff, and defendant brings error.

Reversed.

Brown, J., and Ellis, C.J., dissenting.

Syllabus by the Court

SYLLABUS

Municipality diligent in lighting lawful obstruction in street is not liable for unlighted condition at time of injury, in absence of notice. Where an obstruction is placed in a street by a municipality for a lawful purpose and it becomes the duty of the municipality to keep such obstruction lighted during the dark hours, and the evidence shows that the municipality used reasonable diligence to keep the obstruction so lighted during dark hours that it might be seen by persons approaching it, and the evidence further shows that the light was burning within an hour prior to an injury at that place and was found to be in working and burning condition immediately after the injury occurred, the municipality cannot be held liable for actionable negligence upon the sole ground that the light was not burning at the time of the injury, unless it be shown that the municipality had actually received notice of the unlighted condition and had had sufficient time to remedy the defect.

Municipality is not liable for maintaining obstruction in street for safety of public entering and departing from street cars. A municipality cannot be held liable for maintaining an obstruction in the street, which obstruction is so placed in the street for the purpose of rendering that place safer for the public in general than it would be without such obstruction, and which is for the purpose of protecting the life, limbs, and property of that portion of the general public who must use such place for the lawful purpose of entering and departing from street cars.

Traveler knowing of obstruction in street is guilty of contributory negligence per se in striking it, and cannot recover. If one knows of an obstruction existing in a street and knows that by the exercise of ordinary care he can avoid striking it while traveling along the street, and so knowing such facts so conducts himself as to strike such obstruction, such striking on his part is per se contributory negligence and he cannot recover for injury so sustained.

COUNSEL

Page 885

[93 Fla. 937] Austin Miller, Gov. Hutchinson, Emmet Safay, and Harvey Mabry, all of Jacksonville, for plaintiff in error.

George C. Bedell and Chester Bedell, both of Jacksonville, for defendant in error.

OPINION

BUFORD, J.

In this case the defendant in error sued the city of Jacksonville for damages resulting from injuries which she alleged were caused by driving a Ford car against an alleged obstruction in the street during the dark hours of the morning and when at the time the so-called obstruction was unlighted. She recovered a judgment for $6,000, and the defendant brings writ of error.

The undisputed evidence shows that the obstruction complained of is what is known as a 'safety island,' that is, a concrete platform placed in the street by the side of and running parallel with the street car tracks to be used by persons when entering and departing from street cars; that such safety islands constitute one of the bestknown methods of protecting the safety of that great part of the public which uses street cars in cities for the purpose of being transported from one place to another; that the construction and maintenance of such safety islands has perceptibly...