City of Key West v. Baldwin

• Decision Date: 09 February 1915
• Parties: CITY OF KEY WEST v. BALDWIN.
• Court: Florida Supreme Court

67 So. 808

69 Fla. 136

CITY OF KEY WEST v. BALDWIN.

Florida Supreme Court

February 9, 1915

Error to Circuit Court, Monroe County; M. F. Horne, Judge.

Action by Catherine Baldwin against the City of Key West. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where the charter act of a city provides that a city council shall have power to regulate and provide by ordinance for the grading and construction of sidewalks, and the paving and repair thereof by the owner of property alongside and abutting on such sidewalks, and providing that in the event the property owner whose duty it is to construct or repair the sidewalk on which his property abuts fails to comply with the ordinance, the city may cause the same to be constructed or repaired, and the property owner shall be liable to the city for the cost of such work, and the same shall be a lien on such property, also requiring the city to keep the streets and sidewalks free from obstructions and in good condition such provisions do not relieve such city of its duty to exercise reasonable diligence in repairing defects in sidewalks, nor from liability for negligence in the discharge of such duty.

In an action arising ex delicto, the plea of not guilty does not deny matters of inducement alleged in the declaration.

A plea which contains no matter that cannot be taken advantage of under the general issue should be treated as the general issue.

Contributory negligence is matter of defense.

In an action for personal injuries caused by a defective sidewalk the evidence showed that the sidewalk where the plaintiff fell was four or five inches lower than the one on which she had been walking; that the depression was not gradual, but abrupt; that at night the lights shining upon the sidewalk made the whole surface appear to be smooth; and that the plaintiff stepped into this depression and fell, sustaining injury. Held, such facts prima facie show an actionable defect in the sidewalk.

Error in the admission of evidence which is harmless is not ground for reversal.

Upon the question of the probable duration of the earning capacity of one permanently injured, the American Mortality Tables are admissible.

A party, desiring a charge to be given upon a question of law should request such instruction as he may consider appropriate and desirable, else his complaint of the judge's failure to charge upon the desired point will not be heard.

Evidence examined, and found sufficient to support the verdict on the question of damage.

COUNSEL E. M. Semple, of Key West, for plaintiff in error.

W. Hunt Harris, of Key West, for defendant in error.

OPINION

ELLIS J.

Catherine Baldwin, the defendant in error, hereinafter referred to as the plaintiff, brought an action at law in the circuit court for Monroe county against the city of Key West, the plaintiff in error, hereinafter referred to as the defendant.

The action is for damages for personal injuries alleged to have been sustained by the plaintiff while walking along Duval street in the city of Key West in the nighttime.

The declaration alleges by way of inducement that the city of Key West, at the time the alleged injury to the plaintiff occurred, was a municipal corporation and existing under the laws of the state of Florida, and as such was clothed by the law of the state with powers and subject to the duty, among others, of keeping sound, safe, and suitable for public use and travel all its public streets, alleys, walks, and gutters, and particularly the street known as Duval street in said city; that pursuant to the authority granted by law, the defendant in December, 1912, raised the grade of Duval street, both the street proper and sidewalks upon each side thereof, by placing curbing to an established grade and by paving the street proper with brick, and by ordinance required the owners of adjacent property on each side of Duval street to build and construct sidewalks of concrete in front of their respective properties on the new grade established for the sidewalks of said Duval street as defined by the line of curbstone on each side of the street; that according to the statutes of the state of Florida and the ordinances in such cases made and provided, in those cases where the property holders failed or refused to build and construct a sidewalk of concrete in front of their respective properties on said street according to the new grade, the defendant was authorized, and it became its duty to build and construct the sidewalk as aforesaid, and the cost of construction in law should become a lien upon said property so fronting on the street; that the owners of the property on the northeast side of Duval street for a distance of approximately 161 feet from the corner of Petronia and Duval streets built and constructed a sidewalk of concrete in accordance with the new grade for sidewalks as established by the defendant; that the heirs of Jas. R. Shackelford, deceased, the owners of the property fronting 50 feet on Duval street next adjoining the 161 feet above mentioned to the northwest, failed and refused to build and construct a new sidewalk conforming to the new grade for sidewalks on said street as established, and that the sidewalk in front of the said property of the heirs of Jas. R. Shackelford was, on the 5th day of December, 1913, approximately five inches below said established grade, and there was an abrupt break in the surface line of said sidewalk in front of said property, and that said sidewalk was approximately five inches below the established grade where it joined the 161 feet already constructed according to the grade aforesaid, which fact was well known to the defendant, and had been known to the defendant for 12 months previous to December 5, 1913, and that the defendant at different times during the said 12 months notified in writing the heirs of the said Jas. R. Shackelford to construct a new sidewalk in front of their said property on said Duval street according to the new grade established as aforesaid; that the heirs of the said Jas. R. Shackelford, notwithstanding said written notices and demands, failed and refused to construct a new sidewalk in front of their said property on said street of Duval. The declaration then alleges that:

'Said sidewalk on said December 5, 1913, and for approximately 12 months before said date, was there wrongfully and negligently suffered to be and remain below the aforesaid grade, in bad and unsafe repair and condition, and divers holes and pitfalls then and there being on said street and sidewalk, uncovered and exposed in the nighttime and dark, to be fallen into without warning by the travelers on said street and sidewalk, all of which was known to the defendant on the 5th day of December, 1913, and had been so known to said defendant for approximately 12 months previous to said date.

'Yet the said defendant, notwithstanding its duties as aforesaid, did not keep its streets sound and safe and serviceable for public use and travel, but, on the contrary, knowingly, willfully, negligently, wrongfully, and unjustly permitted the sidewalk of the aforesaid street, known as Duval street, at the point aforesaid, to be and continue, with the knowledge aforesaid of said defendant, in an unsafe, dangerous, and defective condition as hereinbefore set forth, and for approximately 12 months next preceding the time of committing the grievance hereinafter mentioned.

'And the said plaintiff, on the said 5th day of December, 1913, being at said time 64 years of age, while walking along said Duval street, in a northeasterly direction, in the nighttime, at the point on said Duval street, on the northeast side thereof, approximately 161 feet from the corner of said Duval street and Petronia street, as hereinbefore set forth, as she had a right to do, and not apprehending any danger, necessarily and unavoidably stepped off of said sidewalk that was constructed according to the said established grade, onto the said sidewalk in front of the said property of the heirs of Jas. R. Shackelford, deceased, and by reason of said last-mentioned sidewalk being approximately five inches below the said established grade, which fact was not then known to plaintiff, said plaintiff necessarily and unavoidably tripped, stumbled, and fell against and upon said sidewalk, street, and ground with great force, and thereby, and as a result thereof, the left forearm of plaintiff was seriously wrenched, bruised, and sprained, her right arm was bruised and hurt, and her body otherwise bruised and wounded, and also by means of the premises, the said plaintiff became and was sick, sore, lame, and disordered, and so continued for a long time, and will so continue to the end of her life, during which said time, said plaintiff has suffered, and will continue to suffer, great pain and damage, and was hindered and prevented from performing and transacting her lawful affairs and work, and also by reason of the premises was obliged to pay and expend, and hath necessarily paid and expended, divers sums of money for treatment, medicines, and physician's services, in and about endeavoring to be healed and cured of the said wounds, hurts, sickness, and disorders.

'To the damage of the plaintiff, amounting to $2,000.

'And therefore she brings this suit of trespass on the case.'

On March 2, 1914, the defendant filed the following pleas First, not guilty; second, the negligence of the plaintiff contributed to the damage and injury complained of; third, that the plaintiff's alleged damage and injury was not due to the negligence of the city of Key West, or any officer, agent, or servant thereof, but was entirely the result of an accident for which...