City of Fort Lauderdale v. Duchine

• Decision Date: 12 March 1954
• Citation: 70 So.2d 897
• Parties: CITY OF FORT LAUDERDALE v. DUCHINE.
• Court: Florida Supreme Court

Page 897

70 So.2d 897

CITY OF FORT LAUDERDALE v. DUCHINE.

Supreme Court of Florida, Division A.

March 12, 1954.

Rehearing Denied April 2, 1954.

Fleming, O'Bryan & Fleming and Thomas O. Berryhill, Fort Lauderdale, for appellant.

Davis, Kirsch, Brown & Gorman, Fort Lauderdale, for appellee.

SEBRING, Justice.

The defendant below has appealed from a final judgment rendered in favor of the plaintiff in a personal injury action.

From the record it appears that on the afternoon of September 26, 1951, the plaintiff, Ruth Duchine, moved into a residence fronting on the west side of North East Second Avenue in Fort Lauderdale. That night, after dark, she left her home and walked south along the west sidewalk of the avenue to its intersection with North East Twelfth Street, approximately one-half block away. She then crossed east over the intersection along the path maintained for pedestrian traffic. After she had proceeded a short distance along North East Twelfth Street she heard her dog barking inside her house. Thereupon, she stopped and retraced her steps to North East Second Avenue. At that point she proceeded northerly along the east sidewalk of the avenue until she arrived at a position approximately opposite her residence. Then she turned westerly and started walking directly across the avenue toward the house. As she reached the point on the westerly side of the avenue where the paving joined the sandy shoulder, which was approximately 3 to 4 inches lower than the pavement, she stumbled and fell and sustained injuries.

Mrs. Duchine instituted suit against the city and recovered a judgment for damages for the injuries sustained as the result of her fall, upon the theory that the defendant was guilty of negligence 'in creating a dangerous condition in said street by paving a portion of said street and thus raising its height above the sandy strips adjoining the paved portion by at least 3 or 4 inches, making said street unsafe and dangerous for use of pedestrians * * *.'

The question is whether upon the facts stated the defendant below was liable for the injuries sustained by the plaintiff, or whether the court below erred in denying defendant's motion to set aside the verdict and enter judgment in its favor.

We are of the opinion that this question must be answered in favor of the defendant under our holding in City of Tallahassee v. Coles, 148 Fla. 606, 4 So.2d 874, 875. Assuming Mrs. Duchine's version of the accident to be true, it is apparent that she crossed an unlighted and unfamiliar street in the nighttime at a point not intended for use by pedestrian traffic. According to her own testimony, the reason she fell was that in crossing the street she placed her foot in such a manner that half of her foot was on the pavement and the other half extended above the sand shoulder, with the result that when her toe came in contact with the shoulder she lost her balance and fell. The 'drop-off' area where she stumbled...