Ahrens v. Hayworth

• Decision Date: 03 August 1966
• Docket Number: No. 5718,5718
• Citation: 189 So.2d 163
• Parties: Angeline AHRENS, Appellant, v. Charles Ray HAYWORTH and City of St. Petersburg, a municipal corporation, Appellee.
• Court: Florida District Court of Appeals

Page 163

189 So.2d 163

Angeline AHRENS, Appellant, v. Charles Ray HAYWORTH and City of St. Petersburg, a municipal corporation, Appellee.

No. 5718.

District Court of Appeal of Florida, Second District.

Aug. 3, 1966.

B. J. Masterson, of Masterson, Lloyd & Rogers, St. Petersburg, for appellant.

B. Edwin Johnson, Asst. City Atty., St. Petersburg, for appellee City of St. Petersburg.

No appearance for appellee Hayworth.

HOBSON, Judge.

Plaintiff-appellant, Angeline Ahrens, filed suit in the trial court seeking damages for the death of her husband as a result of being struck by a motor vehicle driven in a negligent manner by co-defendant, Charles Ray Hayworth. The City of St. Petersburg, Florida, a municipal corporation, was made a co-defendant. The amended complaint alleged that decedent's death was proximately caused by the concurrent and combined negligence of the co-defendants.

More specifically, as to co-defendant City of St. Petersburg, plaintiff alleged in paragraph 4, inter alia:

'The defendant, City of St. Petersburg, at the time and place alleged, had carelessly and negligently parked heavy equipment, including trucks and wagons, in the center of Ninth Street, South, one of the main arteries of traffic in the City of St. Petersburg, Florida, without placing adjacent thereto, warning lights and flares as required by City Ordinance. Said heavy equipment was parked in such a manner as to obstruct the view of plaintiff, and of defendant, Charles Ray Hayworth. The defendant, City of St. Petersburg, was further negligent in that although it placed at the south end of the obstructions in the roadway a sign reading: 'Repair Ahead 15 MPH', it failed to place a sign at the north end of the obstructions ordering motorists to reduce speed to 15 MPH.'

Thereafter co-defendant City of St. Petersburg filed its motion to dismiss the amended complaint on the grounds (1) that the complaint failed to state a cause of action against the city; and (2) that the alleged unlawful lighting, unlawful or negligent signing, and the alleged negligent blocking of view could not have been a proximate cause of the accident.

The trial court after hearing arguments of counsel dismissed the complaint with prejudice as to the City of St. Petersburg. Plaintiff appeals. Co-defendant Charles Hayworth is not a party to this appeal.

In testing a complaint on a motion to dismiss, all facts properly plead are deemed to be admitted and true. Fletcher v. Williams, Fla.App.1963, 153 So.2d 759.

A defendant may be held liable for an accident caused by an obstruction in the roadway, even though there is no actual physical contact with the obstruction, and when the actual collision involves the plaintiff and a third party. Rodi v. Florida Greyhound Lines, Fla.1953, 62 So.2d 355, Gies v. Consolidated Freight-Ways, Inc., 40 Wash.2d 488, 244 P.2d 248, Thompson v. Erisman, Tex.Civ.App., 1942, 157 S.W.2d 439, affirmed 140 Tex. 361, 167 S.W.2d 731.

A violation of a municipal ordinance is prima facie evidence of negligence. 3 Fla.Jur., Automobiles 94. See also, Booth v. Mary Carter Paint Company, Fla.App.1966, 182 So.2d 292, and Michalski v. Peaslee, Fla.App.1965, 174 So.2d 427. The question of whether the plaintiff can prove her allegation of a violation of the City ordinance or whether the defendant City of St. Petersburg can overcome the prima facie evidence of negligence made out by plaintiff's amended complaint is not the question presently before the court.

We, therefore, hold that the amended complaint alleges negligence against the appellee for failure to comply with the appellee's own ordinance which required the placing of warning lights.

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