Bashaw v. Dyke, B-364
| Decision Date | 02 August 1960 |
| Docket Number | No. B-364,B-364 |
| Citation | 122 So.2d 507 |
| Parties | K. R. BASHAW, doing business as K. R. Bashaw, Builder and Developer, Appellant, v. Henry Eimer DYKE, Jr., and Martha Howard Dyke, his wife, Appellees. |
| Court | Florida District Court of Appeals |
Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, for appellants.
Joel L. Goldman, Jacksonville, for appellees.
K. R. Bashaw, d/b/a K. R. Bashaw, Builder and Developer, defendant below, seeks reversal of a final judgment entered in a negligence action pursuant to verdict of the jury in favor of plaintiffs, Henry Elmer Dyke, Jr., and Martha Howard Dyke, his wife.
The complaint is in two counts, one of which is to recover damages for personal injuries and loss of earning capacity allegedly suffered by Mrs. Dyke as a proximate result of defendant's negligence. The other is to recover damages allegedly suffered by Mr. Dyke, consisting of money laid out for medical treatment of Mrs. Dyke and loss of consortium with her as a result of her injuries. Defendant's answer denied the negligence charged, and affirmatively charged Mrs. Dyke with negligence proximately contributing to the injury complained of.
The points for determination are whether the trial court erred (1) in denying defendant's motion for directed verdict, (2) in charging the jury on the so-called distraction rule which, as applied herein, operated to relieve Mrs. Dyke from the effect of any contributory negligence that might have been established by the evidence, and (3) in its charge to the jury regarding the standard to be applied in determining whether Mrs. Dyke was guilty of contributory negligence.
The material facts are not in dispute. Plaintiffs engaged defendant to add to their home a Florida room, bedroom and bath. Plaintiffs, their three small children, and the mother of Mrs. Dyke continued to reside in the home during the performance of the work.
As the home originally stood, a den adjoined a living room and passage between them was through an archway six feet wide and eight feet high. The floor of the den was constructed of tile and was approximately three inches below the floor level of the living room. The new construction adjoined the den, and the design was such that upon completion of the addition a person normally traveling from the living room to the new addition would pass through the archway into the den and thence through a door into the new Florida room. In conjunction with defendant's work under progress, and also in preparation for work to be performed in the den by one other than defendant, plaintiffs had caused all furniture and furnishings to be removed therefrom. On the day of the accident work on the additions under construction by defendant had progressed to the finishing stages.
Approximately one week prior to the accident the parties blocked the archway between the living room and the den so that the small children of the family would be unable to enter through the den into the area of new construction and become subjected to possible injury. To accomplish this a heavy desk-bookcase combination and a business type of filing cabinet were placed on the living room side of the archway. These articles were about four feet high, extended across the entire width of the arch, and were sufficiently heavy to prevent the children from moving them. The defendant was aware that thereafter adult members of the household had occasionally entered the area under construction by sliding one end of the desk away from the archway and passing through the den into the new Florida room.
With the above purpose in mind, Mrs. Dyke slid one end of the heavey desk-bookcase combination back from the archway and discovered that the passageway leading from the living room into the den had been further obstructed by two bundles (four sheets) of sheetrock, also known as beaverboard. Each sheet was 4' wide, 8' long and 3/8"'' thick. The combined weight was approximately 180 pounds. This material had been placed there by defendant's workmen on the day of or the day prior to the accident, but such was not made known to Mrs. Dyke until the occasion mentioned. The bundles were placed on edge lengthwise with the bottom edge located about three inches from the den wall and the top edge sloped to and resting against each side of the archway, thus further blocking the entire passageway between the living room and the den.
Rain had fallen intermittently throughout the day of the accident, increasing in the late afternoon to the point where the painters were obliged to quit their work, and the other workmen left the premises earlier than usual. In the evening a torrential rain commenced to fall and the wind began to blow. After this condition had continued for a period of from fifteen to thirty minutes, Mrs. Dyke then became aware that rain was blowing into her home through open casement windows serving some portions of the old part of the home and she proceeded to close them. Having done this, she then realized that the rain was also blowing into the den--an old part of the home--through awning type aluminum windows that served the den, and determined to close these also.
Mrs. Dyke, being unfamiliar with this type of building material and knowing nothing of its weight, grasped the two bundles by the top edge with both hands and attempted to slide them horizontally to the archway to as to provide her with free passage into the den. In so doing she became aware of their heavy weight and her inability to slide them horizontally, whereupon she pushed them forward and away from herself, intending to stand them vertically on edge and pass around one end through the space between their side edge and the wall. As she did this the momentum generated and the weight of the sheetrock caused it to continue its forward motion, but she clung to it momentarily for fear that if released from her grasp it would fall with such force as to break. In so doing the weight of the sheetrock pulled her off balance, her feet started to slip on the tile floor causing her legs to be spread widely apart as she fell forward, and she ultimately released her grasp but not in time to regain her balance. In some manner her fall was such that upon coming to rest her feet were found to be located beneath the fallen sheetrock. These circumstances resulted in substantial bodily injuries.
A careful examination of the transcript of testimony fails to reveal any competent evidence of negligence on the part of the defendant proximately causing or contributing to the injury suffered by Mrs. Dyke, therefore defendant's motion for directed verdict should have been granted. City of Tampa v. Norris, Fla.App.1958, 101 So.2d 30.
Assuming, however, that some degree of negligence on the part of defendant had been established, the evidence is conclusive that negligence on the part of Mrs. Dyke proximately contributed to her injury, so that on that basis also the motion for directed verdict should have been granted. Andrews v. Goetz, Fla.App.1958, 104 So.2d 653. The only hint of negligence attributable to defendant is that his workmen placed the sheetrock in the den against the archway wall, thereby providing an additional barricade to passage between the living room and the den, and did not notify Mrs. Dyke that it was put there or its weight. By her own admission, however, she saw the sheetrock the moment she moved the bookcase, and the following testimony Howard Dyke, his wife, Appellees. accident:
It will be recalled that this floor is part of the original house....
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