City of Daytona v. Edson

• Citation: 46 Fla. 463,34 So. 954
• Parties: CITY OF DAYTONA v. EDSON et al.
• Decision Date: 16 June 1903
• Court: United States State Supreme Court of Florida

34 So. 954

46 Fla. 463

CITY OF DAYTONA v. EDSON et al.

Florida Supreme Court, Division B.

June 16, 1903

Error to Circuit Court, Volusia County; Minor S. Jones, Judge.

Action by Sarah A. Edson and H. O. Edson against the city of Daytona. Judgment for plaintiffs, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Municipal corporations are required to exercise reasonable diligence in repairing defects in streets and sidewalks after the unsafe condition thereof is known, or ought to have been known, to them, or to their officers having authority to act for them. It is essential to liability in such cases to allege in the declaration facts which show negligence on the part of the corporation, and a mere general allegation that the corporation negligently suffered and permitted the street or sidewalk to remain out of repair, without alleging knowledge of the defect, the time it was permitted to remain out of repair, or other facts showing negligence on the part of the municipal body, will not be sufficient.

2. Where the charter of a city gives it power to provide for lighting its streets, but does not require it to exercise such power, there is no general duty devolved upon the city to light the streets that will make its failure to do so actionable negligence.

COUNSEL I. A. Stewart (Egford Bly, on brief), for plaintiff in error.

OPINION

CARTER P.J.

On December 15, 1898, defendants in error brought an action against plaintiff in error in the circuit court of Volusia county to recover damages for personal injuries. The declaration alleges that defendant before and on the 12th day of September, 1897, was possessed and had control of certain public sidewalks and streets on a certain street called 'Beach Street' in said city, and 'ought to have kept the same in good and safe repair and condition, yet the defendant, not regarding its duty in that behalf, while it was so possessed and had control of said sidewalk and street to wit, on the day aforesaid, there wrongfully and negligently suffered to be and remain in bad and unsafe repair and condition, and divers holes then and there being on said sidewalk and street, uncovered and exposed in the nighttime and dark, said street not being lighted, said holes remained uncovered and exposed, to be fallen into without warning by the travelers on said street and sidewalk, by means whereof the plaintiff Sarah A. Edson, who was then and there passing along and upon said sidewalk and street, then necessarily and unavoidably stepped into one of the numerous holes in said sidewalk and street, and unavoidably tripped, stumbled, and fell against and upon said sidewalk and street, and was thereby thrown to and fell upon said sidewalk and street, and the ground there,' and that thereby she sustained injuries to her person particularly set out in the declaration, but which it is unnecessary to repeat here.

The defendant filed its demurrer to the declaration, which was overruled, whereupon it filed pleas upon which issue was joined, and at a trial had in November, 1900, verdict and judgment were rendered in favor of plaintiff for $1,000. The defendant seeks to reverse this judgment by the present writ of error.

The only question necessary to be considered, in view of the conclusion reached, arises upon the assignment of error questioning the propriety of the ruling on demurrer. In City of Orlando v. Heard, 29 Fla. 581, 11 So. 182 it was held that in actions...