Breau v. Whitmore
| Decision Date | 01 July 1952 |
| Citation | 59 So.2d 748 |
| Parties | BREAU v. WHITMORE et al. |
| Court | Florida Supreme Court |
Charles R. Tripp and Morrow & Mayes, Miami, for appellant.
Dixon, DeJarnette & Bradford, Reginald L. Williams, Miami, for Clifton Whitmore.
Knight, Smith & Underwood, Miami, for Cosen Inv. Co., Inc., and the Keyes Co.
Blackwell, Walker & Gray, Miami, for Edward M. Fleming Const. Co., a Florida corporation, and Edward M. Fleming and Anthony A. Fleming, individually and doing business as Esward M. Fleming Const. Co., a partnership, appellees.
Appellant initiated this action in the lower court to recover damages for personal injury suffered by him when he walked into a plank or scaffold which was projecting into the hallway in the Seybold Building, Miami, Florida, at an elevation about the level of appellant's eyes, which hallway was the one he customarily used when leaving the office in which he worked. He alleged that the injury which he suffered was brought about by the joint negligence of the appellees. In his second amended declaration appellant (plaintiff below) alleged that Cosen Investment Co. owned the office building and the Keyes Company operated and maintained it as agents for Cosen, and these two defendants, failing in their duty to keep the hallway open and free from obstruction carelessly allowed the plank to protrude without warning. The defendants, Fleming and Whitmore, were alleged to have been negligent because they knew, or should have known, that the hallway would be used by occupants of the building, as well as other persons, after their employees quit working for the day at about 4:30 p. m. and failed in their duty to see that the common hallway was not dangerously obstructed without warning. The declaration was amended to amplify the elements of special damage and to add the Fleming partnership. All of the appellees (defendants below) filed among other pleas a plea of contributory negligence on the part of appellant. After appellant had presented all of his evidence a motion for a directed verdict was granted by the trial judge in favor of all of the appellees.
Appellant testified that he had worked in the Seybold Building for the Johnson Clock Company for a period of seven or eight years prior to his injury; that he had seen work going on in the hallway for some time prior to the date upon which he was injured; that the plank was being used as a scaffold in the reconstruction or renovation work on the building; that he was looking down at his feet or the floor of the corridor when he walked into the plank; that there were no lights on in the hall at the time and that it was 'rather dark'; that the scaffold or plank had been moved by the workmen as they progressed with their work; that he had passed this scaffold or another like it before when leaving his office and that the night before the accident he had passed the plank but that it was not in the same location; he estimated the width of the hallway as about four feet, except where the columns come up into the hall (in such places the width would be some 5 or 6 inches less than four feet); he admitted that there was room enought for a person to walk in the hallway ans pass the plank without any difficiulty but that he did not see the plank before walking into it while taking or after having taken about five steps from his office door.
The hallway into which the plank or scaffold projected runs along an airway which is open at the top to permit ventilation and light. Although appellant testified it was 'rather dark' he also testified that the day on which the accident occurred was July 26, 1948, and the hour about 6:00 o'clock p. m. We do not deem it particularly significant that there were no lights on in the hallway because we take judicial notice of the fact that upon said date and at said hour it was still...
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