Brightwell v. Beem
| Decision Date | 25 July 1956 |
| Citation | 90 So.2d 320 |
| Parties | Peggy Jo BRIGHTWELL, a minor, by her father and next friend, Burton U. Bright-well, Jr., Appellant, v. Melville J. BEEM and Glea Beem, Appellees. Burton U. BRIGHTWELL, Jr., Appellant, v. Melville J. BEEM and Glea Beem, Appellees. |
| Court | Florida Supreme Court |
J. D. Hobbs, Jr., of Cramer, Smith & Hobbs, St. Petersburg, for appellant.
T. Paine Kelly, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees.
The appellant in each of the above cases, who was plaintiff below, seeks eversal of a judgment entered pursuant to a directed verdict in favor of the appellees, who were defendants below, in separate actions for damages resulting from the alleged negligent operation of a public bathing beach.
The point to be determined by the appeal is whether the evidence submitted by the plaintiff was sufficient to establish negligence of the appellees as against a motion for directed verdict submitted by the defendants at the close of the plaintiffs' case.
In the summer of 1950, Peggy Jo Brightwell, age 15, was a paying customer at an amusement park and bathing beach operated by the defendants-appellees on the shore of Lake Ellen in Hillsborough County. From the record it appears that the facilities were similar to those offered by recreation and amusement parks throughout Florida. Various diving facilities were available. In addition there was constructed from the shoreline of the lake for a distance of approximately 35 feet a wooden platform. The depth of the water beneath the platform increased from zero at the shoreline to some four to six feet at the end thereof. The height of the platform above the water level varied from one and one-half to three feet, depending on the level of the water. Although the answer of the defendants was to the effect that the platform was not offered as a diving facility, the record shows that patrons of the amusement park customarily used it for such purpose with the knowledge of appellees. It had been so used during the afternoon and evening preceding the accident hereafter described and defendant, Glea Beem, actually witnessed Peggy Jo preparing to dive from the platform on the occasion of the unfortunate occurrence.
At about 8:30 in the evening, Peggy Jo attempted to dive off the side of the platform approximately two-thirds the distance from the shore at a point where the record suggests that the water was three to three and one-half feet deep. At that time, the floor of the platform was about two feet above the surface of the water. As she undertook to dive, it appears that the girl's right foot slipped or twisted, whereupon she entered the water in a more or less distorted position and apparently struck the bottom with the right side of her head and right shoulder, thereby producing what the doctor described as a severance of the spinal cord at the lower cervical level. The injury resulted in complete paralysis of the girl in all four of her extremities; a condition which she will suffer the rest of her life.
The complaint is grounded on the alleged negligence of the defendants-appellees in failing to maintain the area in a safe condition, in failing to warn, by the posting of signs or otherwise, that the area was dangerous for diving and in failing to place guardrails along the sides of the platform to prevent patrons from diving or attempting to dive in water which was allegedly too shallow for the purpose.
The defense was grounded on the proposition that the platform was installed for swimming and sun-bathing but not diving, that there was a sign warning 'Don't Dive From This Dock,' and that the proximate cause of the alleged injury was the negligence of the girl in the manner in which she attempted to dive rather than the alleged negligence of the defendants in the maintenance of the swimming area.
Nowhere does the record at this point show that the alleged sign was posted. On the contrary, this record in the absence of testimony on behalf of defendants sustains the conclusion that there was no such sign.
The whole problem resolved by the trial judge evolved around the question of whether any negligence on the part of the defendants was established by the plaintiff's witnesses and whether the contributory negligence of the girl produced her injury rather than the alleged negligence of the defendants.
At the close of the plaintiff's case, the trial judge was of the view that the plaintiffs had failed to prove any negligence on the part of the defendants and thereupon granted a motion for a directed verdict in favor of the defendants. A judgment was thereupon entered accordingly and after denial of the motion for new trial, plaintiffs appealed. Reversal of the judgment is now sought.
Appellants contend that evidence in this state of the record must be read in the light most favorable to them, and that there was adequate evidence of negligence to justify submitting the cause to the jury.
The appellees contend that the plaintiff's own witnesses established the proposition that the defendants were not guilty of any negligence but on the contrary that the girl suffered the...
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