City of Clearwater v. Gautier

• Citation: 119 Fla. 476,161 So. 433
• Parties: CITY OF CLEARWATER v. GAUTIER et al.
• Decision Date: 20 February 1935
• Court: Florida Supreme Court

161 So. 433

119 Fla. 476

CITY OF CLEARWATER v. GAUTIER et al.

Florida Supreme Court, Division B.

February 20, 1935

Rehearing Denied June 3, 1935.

Error to Circuit Court, Pinellas County; John U. Bird, Judge.

Action by Mrs. E. B. Gautier, joined by her husband, E. B. Gautier against the City of Clearwater, a Florida municipal corporation. To review a judgment for plaintiffs, defendant brings error.

Affirmed.

COUNSEL Jones & White and John C. Polhill, all of Clearwater, for plaintiff in error.

Hardee & Martin, of St. Petersburg, for defendants in error.

OPINION

BUFORD Justice.

Defendants in error sued the city of Clearwater to recover damages for injuries alleged to have been received by reason of a fall occasioned by Mrs. Gautier stepping into a wide crack or crevice in a broken and unsafe sidewalk of said city.

Plaintiff in error states the question involved for the court's determination as follows:

'Where the undisputed testimony shows that plaintiff, an intelligent and educated woman, while walking in broad daylight upon a city sidewalk adjacent to and forming a part of the grounds of Two High Schools attended by approximately seven hundred pupils, approached a partially broken and imperfect cross-walk, the condition of which was as obvious and patent to the pedestrian as to the City, the plaintiff having observed its condition before proceeding thereon, it appearing to her to be a reasonably safe place to walk upon, and it further appearing from undisputed evidence that said walk, in substantially the same condition, had been in use and traversed by large crowds both day and night for several years without accident or injury to anyone, and plaintiff proceeded upon said cross-walk, placed her heel in a triangular depression in the pavement not exceeding two inches deep and two or three inches wide, fell and was injured; Do such undisputed facts, as a matter of law, support a finding of actionable negligence and consequent legal liability on the part of the City?'

Defendants in error say that this statement of the question is a fair statement, except that there should be added thereto the following facts appearing from the testimony:

'(1) That the crevice in the sidewalk in which the defendant in error stepped, and as a result of which she was injured, was only one of many crevices and breaks occurring in the immediate proximity of the crevice into which she stepped many of such cracks and crevices being of a more serious nature and defect than the crevice into which she stepped.

'(2) That the crevice into which the defendant in error stepped and as a result of which she sustained her injuries, was obscured by grass and appeared to her to be solid and firm as when proceeding along such sidewalk she stepped thereinto.

'(3) That the crevice into which the defendant in error stepped was approximately 3"' deep and was in a triangular shape.'

A study of the record shows substantial evidence to support the suggestion stated by defendant in...