City of Avon Park v. Giddens

• Citation: 27 So.2d 825,158 Fla. 130
• Parties: CITY OF AVON PARK v. GIDDENS.
• Decision Date: 15 November 1946
• Court: United States State Supreme Court of Florida

27 So.2d 825

158 Fla. 130

CITY OF AVON PARK v. GIDDENS.

Florida Supreme Court

November 15, 1946

Appeal from Circuit Court, Highlands County; Don Register judge.

Carver Langston & Carter, of Lakeland and S. C. Pardee, Jr., of Avon Park, for appellant.

Bentley & Shafer, of Lakeland, for appellee.

BARNS, Associate Justice.

At trial upon the issues a verdict of $35,000 was rendered for appellee-plaintiff and on motion for new trial the trial judge made an order for a remittitur of $10,000 which the plaintiff made and the defendant city appeals.

The first count of plaintiff's declaration charges that the defendant so operated an automobile, which was in an unfit mechnical condition, so as to run said car off the highway and into and against Roger Giddens, eight years of age.

The second count is similar to the first count with a charge that the car was being operated for a 'corporate purpose' and without any reference to the mechanical condition.

The trial was upon a plea of 'not guilty' to the declaration.

The facts appear to be that Roger Giddens was seriously and permanently injured by having been hit by an automobile of the appellant while being driven by Ellis Green, a policeman of said city.

Ellis Green was en route to assist the Chief of Police in bringing to the station a prisoner under arrest by the chief.

At the time of the accident the car was proceeding south and had traversed a depression in the highway called a 'dip'. North of the 'dip' the highway was in good condition but south of the 'dip' it was not.

The testimony as to the speed of the car varies from 50 to 70 miles per hour to 'terrific rate' but the established facts are that upon passing over the 'dip' the driver lost partial control over the car; that car brakes were defective and that the car went first to the right and then to the left after nearly hitting a tractor going north which it passed some 250 feet from the 'dip'; it then hit Roger, who was off or to the left-hand side of the highway about 450 feet from the 'dip'. It then returned to the right-hand side of the road and came to a stop some 700 feet from the 'dip'.

Upon hitting Roger he was bounced upon the hood of the car--carried 150 feet where he fell off when the car hit another bump.

The left front headlight was broken.

Upon appeal the appellant's errors assigned and argued are that the trial court erred in (1) denying its motion for a directed verdict and (2) in denying its motion for a new trial, and poses for the court's consideration certain questions.

A question presented as raised by the assignments of error is: Is a municipal corporation which has entrusted its automobile to its police officer for use liable for demages to a pedestrian caused by the negligent operation of the automobile by the police officer in the performance of a strictly governmental function of the city?

In Maxwell v. City of Miami, 87 Fla. 107, 100 So. 147, 33 A.L.R. 682, the city was held liable for the reckless driving of a fire truck in going to a fire and held that the 'police power' must not be so recklessly exercised as to unreasonably impair private rights, but that the operation of a fire truck was now governmental.

In City of Tallahassee v. Kaufman, 87 Fla. 119, 100 So. 150, the city was held liable for the operation of a fire truck in such a condition as to make it a hazard to pedestrians.

In City of West Palm Beach v. Grimmett, 102 Fla. 680, 136 So. 320, 137 So. 385, recovery against the city was allowed when a policeman recklessly and carelessly ran over the plaintiff whe...