City of Gainesville v. Kirkland
| Decision Date | 22 June 1934 |
| Parties | CITY OF GAINESVILLE v. KIRKLAND. |
| Court | Florida Supreme Court |
Rehearing Denied Aug. 10, 1934.
Second Petition for Rehearing Denied Oct. 12, 1934.
En Banc.
Error to Circuit Court, Alachua County; A. V. Long, Judge.
Action by Anna C. Kirkland against the City of Gainesville, a municipal corporation. To review an order granting a new trial after a directed verdict for defendant, defendant brings error.
Order granting new trial affirmed.
On Petition for Rehearing.
COUNSEL Baxter & Clayton, of Gainesville, for plaintiff in error.
Fielding & Duncan, of Gainesville, for defendant in error.
An action for damages against the city was brought under the hazardous occupation statute, section 7058(4971), Compiled General Laws, by the widow for the alleged wrongful death of her husband, an employee of the city, who fell from an electric light pole on which he was adjusting wires, alleged to have been caused by the defective condition of the pole. To the amended declaration there was a plea of not guilty. A plea held by the trial court to be a plea of contributory negligence was held good on demurrer thereto. A demurrer to the following plea was sustained:
At the close of all the testimony the court directed a verdict for the defendant and subsequently granted a new trial, to which, under the statute, a writ of error was taken by the defendant.
Under the Act of 1853, sections 4608(2903), 4609(2904), Compiled General Laws, when the 'courts shall allow and grant * * * any motion for new trial,' the party aggrieved thereby 'shall make his exceptions thereto in writing' to be made a part of a bill of exceptions and 'assigned for matter and cause of error upon any writ of error from the final judgment in said cause.' But by the statute first enacted as section 1267, Revised Statutes of 1892, section 4615(2905) Compiled General Laws, a writ of error may be taken to 'an order granting a new trial at law,' and the statute does not require an exception to be taken to the order granting a new trial in order to take a writ of error thereto.
On writ of error to an order granting a new trial in a law action, the statute provides that the court 'shall review the said order.' The order is therefore the only matter to be adjudicated on the writ of error.
The grounds of the motion for new trial in effect were that the verdict is contrary to the law and to the evidence; that the court erred in directing a verdict for the defendant; that the doctrine of assumed risk was not applicable; that one of the pleas sustained as a plea of contributory negligence was in effect held by the court to be a plea in bar as applied to some of the testimony adduced; and that under the hazardous occupation statute, there may be a recovery if the defendant was negligent, though if there was contributory negligence the damages allowed plaintiff should be appropriately reduced.
The court did not err in sustaining a demurrer to the plea denying that notice to the city of the injury complained of was given as required by a provision of the city charter, and as it cannot be said as matter of law that there was no evidence of negligence of the defendant as alleged, the cause should have been submitted to the jury upon proper instructions, therefore a verdict for the defendant should not have been directed, and the order granting a new trial was proper. If the plea held by the trial court to be a plea of contributory negligence was in legal effect a plea in bar the defendant below was not injured by the holding, since if it is a plea in bar it is covered by the plea of not guilty. Apparently the trial court sustained the plea upon the theory that should negligence of the defendant be shown by the evidence, the defendant could then have the plea as a predicate for adducing evidence of contributory negligence. The doctrine of assumption of risk is not applicable when the death of an employee is attributed to the negligence of the employer in this...
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