City of Jacksonville v. Stokes

• Court: United States State Supreme Court of Florida
• Writing for the Court: MILLEDGE; ROBERTS; MATHEWS; ROBERTS, C. J., and TERRELL
• Citation: 74 So.2d 278
• Parties: CITY OF JACKSONVILLE v. STOKES et al.
• Decision Date: 06 July 1954

Page 278

74 So.2d 278 CITY OF JACKSONVILLE
v.
STOKES et al. Supreme Court of Florida, En Banc. July 6, 1954.
Rehearing Denied Sept. 13, 1954.

William M. Madison and Inman P. Crutchfield, Jacksonville, for appellant.

Noble & Searcy and Henry M. Searcy, Jacksonville, for appellees.

MILLEDGE, Justice.

Marian Stokes, a 12 year old girl, fell as a result of a hole in the sidewalk of a Jacksonville street. She sued the city alleging negligence. At the conclusion of the plaintiff's case the city moved for a directed verdict on the ground that the little girl was guilty of contributory negligence as a matter of law. The motion was denied. The issue of contributory negligence was submitted to the jury which returned a verdict for the plaintiff in the amount of $1,000.

The sole question on appeal is whether there was contributory negligence as a matter of law. The city concedes that it was negligent in permitting the sidewalk hole to stay unrepaired.

There was not a particle of evidence on the plaintiff's side that the girl knew of the hole; on the contrary, the testimony is repetitious and emphatic that she did not. Even an adult is not careless in failing to avoid harm unless he is actually warned or the circumstances warn him. The mere fact that a hole is big enough to see does not settle the question whether one should have avoided stepping into it. If visibility alone settled contributory negligence every case of slipping on a floor or of encountering any stationary object would automatically be a case of non-liability for in all these cases the condition which caused the harm was visible. The question always is whether the plaintiff used due care for his own safety, taking into account all the circumstances, of which the visibility of the object encountered is an important one, but still only one of the circumstances.

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The question is whether one should be aware of the danger. This depends largely upon the likelihood of encountering danger. Very rarely do objects from above cause us harm, so persons are not careless who do not go about examining the sky. One need not look for danger unless there is reason to expect it.

It takes more indication of danger to alert a child than to alert an adult. 'Children are necessarily lacking in the knowledge of physical causes and effects which is usually acquired only through experience. They must be expected to act upon childish instincts and impulses, and must be presumed to have less ability to take care of themselves than adults have.' Bagdad Land & Lumber Co. v. Boyette, 104 Fla. 699, 140 So. 798, 800. As applied to the class of action here involved, the general statement in 63 C.J.S., Municipal Corporations, § 849, p. 195, suffices:

'An infant of tender years injured by defects or obstructions in the street cannot be charged with contributory negligence, but this does not mean that a municipality is an insurer of the safety of such child. Even when a child has reached an age when it is deemed in law to be possessed of sufficient discretion to charge it with negligence, it is ordinarily not held to the same degree of care and prudence as would be expected of adults under similar circumstances; but it is guilty of contributory negligence only where it fails to exercise such care and prudence as could be reasonably expected of a child of its age and intelligence under like circumstances.'

Even if the plaintiff here were an adult, the issue of contributory negligence was for the jury, but the question of the child's prudence and judgment is itself a question of fact. 38 American Jurisprudence 887.

The city's counsel have cited no case and we are aware of none in which the contributory negligence of a child has been decided as a question of law.

In whatever situation the law finds children, it usually deals with them differently than it does with adults.

Affirmed.

THOMAS, HOBSON and DREW, JJ., concur.

ROBERTS, C. J., and TERRELL and MATHEWS, JJ., dissent.

MATHEWS, Justice (dissenting).

This is an appeal from a final judgment entered pursuant to a verdict by a jury. A pedestrian was hurt by reason of a fall on a sidewalk immediately in front of her home on Silver Street in the City of Jacksonville. The sole question presented is whether or not she was guilty of such contributory negligence as to bar recovery.

For some reason there is no assignment of error with reference to negligence of the city and the burden of proof on the part of the plaintiff concerning such negligence. The case was apparently tried on the assumption that the city was negligent but that the city claimed that the pedestrian was guilty of such contributory negligence as to bar recovery.

The undisputed facts are: the injured person was a girl between twelve and thirteen years of age; she lived with her sister in a home on Silver Street in Jacksonville, Florida; Silver Street is in Springfield, the oldest part of the City of Jacksonville; the sidewalk was an old one and was constructed of brick and was immediately in front of the home of the pedestrian; the bricks were uneven and the sidewalk was very bad and rough because of the unevenness of the bricks; it was only a few feet from the steps of the home to the sidewalk. The minor and her sister with whom she lived used this sidewalk daily; a large tree was growing close to the edge of the sidewalk and a root from such tree and displaced a brick and there was a hole partly filled with dirt and the root from the tree

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where this brick was from. The minor and her sister had lived in this home for two months and the sidewalk was used daily. The sister had seen this hole but had never...