Aucompaugh v. City of Punta Gorda
| Citation | 181 So.2d 713 |
| Decision Date | 14 January 1966 |
| Docket Number | No. 5613,5613 |
| Parties | Jay C. AUCOMPAUGH and June E. Aucompaugh, husband and wife, Appellants, v. CITY OF PUNTA GORDA, Florida, a municipal corporation, Appellee. |
| Court | Court of Appeal of Florida (US) |
Charles J. Cheves, Jr., of Icard, Merrill, Cullis & Timm, Sarasota, for appellants.
Jack R. Schoonover, of Wotitzky, Wotitzky & Schoonover, Punta Gorda, for appellee.
After verdict for Plaintiff in a negligence action the trial court upon motions entered judgment for defendant non obstante veredicto and by separate order provided that in event said judgment be reversed that defendant's motion for new trial is granted on the ground that there is no sufficient or substantial evidence tending to support the jury's verdict. Such alternative order is approved in Florida. McCloskey v. Louisville & Nashville Railroad Company, Fla.App.1960, 122 So.2d 481; Kaufman v. Sweet, Fla.App.1962, 144 So.2d 515, Cert. Denied, Fla., 156 So.2d 846.
The record demonstrates that there was sufficient and substantial evidence to support the jury's verdict and we reverse.
Plaintiff-wife was injured while walking upon the sidewalk when she stepped on the cover of a water meter box maintained by defendant, City of Punta Gorda, and which cover formed a part of the sidewalk. The cover flipped up and her foot went into the meter box, causing her to fall. Four days previously a city employee had read this meter and necessarily removed and replaced the cover. Whether he did so negligently was a question of fact for the jury and whether it was in a defective condition which he should have noticed and reported for correction also raised the question of constructive notice upon which the jury's verdict could as well have been based.
Several months before, the city received a report of a similar experience by another pedestrian and that the same meter cover was loose and it was put back in place. Three earlier instances of tripping or falling on one of the four meter covers in the sidewalk there had been reported. Defendant's employee testified that the meter box was not defective; other employees stated that when a meter cover is properly seated on the flanges inside the box and is not defective then the cover will not flip when stepped on. Plaintiff testified, and the investigating city police officer denied, that at the scene he replaced the meter cover and tested it and that the meter cover flipped and his foot went through.
The jury may well have found from such evidence either that the meter cover was not seated correctly by defendant's employee upon the last...
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Panoz v. Gulf & Bay Corp. of Sarasota
...to be drawn therefrom, points to but one possible conclusion'. Barr v. Mizrahi, Fla.App., 1960, 124 So.2d 508; Aucompaugh v. City of Punta Gorda, Fla.App., 1966, 181 So.2d 713. However, under the facts developed at the trial here, we think the trial Judge would have been warranted in direct......