Chambers v. Southern Wholesale, Inc.

• Decision Date: 24 October 1956
• Citation: 92 So.2d 188
• Parties: Josephine L. CHAMBERS, Appellant, v. SOUTHERN WHOLESALE, Inc. (Formerly Hadley's, Inc.), a Florida corporation, and Royal Palm Ice Co., a Florida corporation, Appellees.
• Court: Florida Supreme Court

Page 188

92 So.2d 188

Josephine L. CHAMBERS, Appellant, v. SOUTHERN WHOLESALE, Inc. (Formerly Hadley's, Inc.), a Florida corporation, and Royal Palm Ice Co., a Florida corporation, Appellees.

Supreme Court of Florida, En Banc.

Oct. 24, 1956.

Rehearing Denied Feb. 7, 1957.

Alfred Kreisler, Miami, for appellant.

Blackwell, Walker & Gray, Miami, for Southern Wholesale, Inc.

Knight, Smith & Underwood and Jackson Peters, Miami, for Royal Palm Ice Company.

CROSBY, Associate Justice.

In this case the trial court granted motions for summary judgment and entered final judgment in favor of each of the appellees, who were defendants below. The question on appeal is whether the pleadings and the deposition of appellant raised a material issue of fact that should be submitted to a jury.

The appellant Josephine L. Chambers filed a complaint against the appellees Southern Wholesale, Inc., and Royal Palm Ice Company, Inc., alleging that she was injured as a result of slipping and falling on a public sidewalk in front of the store of the appellee Southern Wholesale and that her injury was the proximate consequence of negligence on the part of the appellees. Specifically she charged that Southern Wholesale received delivery of a block of ice and negligently placed it or permitted it to be placed on the public sidewalk and permitted it to remain there until it partially melted and caused a slippery and unsafe condition for persons walking on a public sidewalk. The complaint contained a similar charge of negligence against the Ice Company for placing the block of ice on the public sidewalk and allowing it to remain there until it partially melted and caused a slippery and unsafe condition. Each of the appellees filed a motion to dismiss the complaint on the ground that it failed to show negligence on the part of appellees and, further, that the facts alleged showed appellant had been guilty of contributory negligence. These motions were denied. Appellant thereupon, with leave of court, filed an amended complaint identical with her original complaint except that it contained an additional paragraph charging that the alleged negligent conduct of appellees was a violation of an ordinance of the City of Miami that makes it unlawful to place obstructions on any public sidewalk. The answer of each appellee denied negligence on its part and alleged contributory negligence on the part of appellant.

Appellant's deposition was taken by the appellee Ice Company. This deposition showed that appellant was an employee of Southern Wholesale and that the accident occurred in front of that company's store when she was about to enter the store on her way to work at around 8:10 or 8:20 a. m. The weather was dry. She had been driven to work by her son who parked her automobile right in front of the store to let her out. She got out of the automobile, took one or two steps an then stepped into the puddle of water, slipped and 'went flying through the air.' The block of ice, then about 12 inches in each dimension, was near the wall of the building just to the right of the door and was not in the path of travel into the store. Melting had, however, caused a puddle of water some 42 inches long and 25 inches wide, extending from the block of ice to about the middle of the sidewalk in front of the door. At the time appellant was carrying her pocketbook and three wool rug samples 27 by 54 inches in size. She testified that she saw the water just about the time she stepped in it but that there was nothing to prevent her seeing it from the time she got out of the car. Appellant did not think that she hit the block of ice at all. Appellant's brief contains the statement that she had been employed by Southern Wholesale for about thirteen months at the time of the accident; that she arrived at work each morning at approximately the same time, and that she had seen a block of ice on the sidewalk only once before, some six months prior to the accident. (This latter information is not found in the excerpt from appellant's deposition included in the appendices to the briefs, but it is not challenged by appellees and we therefore assume that appellant did so testify. We point out, in passing, that the better practice is to include in the appendix a transcript of those parts of the testimony relied upon in a party's brief.)

In these circumstances the trial court granted a motion for summary judgment in favor of both appellees. The record does not indicate whether the granting of these motions was grounded upon failure of appellant to show actionable negligence on the part of appellees or upon a finding that appellant was guilty of contributory negligence as a matter of law. For the reasons hereinafter set forth, it is not necessary to determine upon which ground the trial court reli...