City of Miami Beach v. Wolfe
| Decision Date | 16 November 1955 |
| Citation | 83 So.2d 774 |
| Parties | CITY OF MIAMI BEACH, Appellant, v. Sadie WOLFE, Appellee. |
| Court | Florida Supreme Court |
Roland W. Granat, Miami Beach, for appellant.
Norman Greene, Miami Beach, and S. Philip Malspeis, Miami, for appellee.
The appellee was awarded a judgment against the appellant for injuries suffered when she stepped into a depression in a sidewalk and fell.
The appellant states in its brief that the amount of the verdict was relatively small but that questions of substantive right, justice and fairness loom through the record.
The proceedings first brought to our attention, in which, by his rulings, the judge is claimed to have erred, were taken before the effective date of the amendments of the Common Law Rules, June 1, 1954. We will refer to the parties according to their position in the trial court. The attorney for the plaintiff was served with notice that the plaintiff's deposition would be taken at a certain time. Evidently the plaintiff ignored the notice and failed to invoke aid of the court to prevent the taking of the deposition or to regulate the manner of taking it. 30 F.S.A. Common Law Rule 23(b). The defendant then reported to the court the plaintiff's failure to appear and asked the court to strike all plaintiff's pleadings and dismiss the action or order the plaintiff to appear for examination. Such a motion was authorized by Common Law Rule 30(d) which contained the provision that if a party fails to respond to a notice that his deposition will be taken, the court may strike all or parts of his pleadings, or dismiss the action, or enter judgment by default against the offending party.
The court later entered an order that the deposition of the plaintiff be taken in the locality of her residence in New York, or that she be examined in Dade County one week before the scheduled trial.
Plainly the regulation by the court of depositions is largely a matter of discretion and we find nothing here to indicate abuse by the trial judge. We have related what he may do under the cited rule. It is interesting to note that the defendant not only asked for the relief the rule allows, but he sought in the alternative such other order with respect 'to requiring the plaintiff to appear to give her deposition as the Court may consider just and proper under the circumstances.' The judge complied with the alternative request of the defendant and we think he did so justly. And the failure of plaintiff to resort to Rule 23(b), supra, did not affect the validity of the order entered pursuant to Rule 30(d), supra. We decide that the ruling of the judge should not be disturbed.
The only remaining question that we feel obliged to answer gives us more concern. We introduce our discussion of the subject by referring to our decision in Seaboard Air Line Ry. Co. v. Parks, 89 Fla. 405, 104 So. 587, 588, that evidence of repairs or improvements made after an injury is not admissible to show a "consciousness on the part of the owner, of negligence, connivance, or other culpability in causing the the injury." In this holding we adopted the majority view and approved the reason frequently given for the rule, namely, if such evidence could be received against a defendant he would be penalized for an attempt to prevent injury to others. There seems to be no need now to elaborate on either the rule or the reason for it because the appellee concedes 'that evidence of repairs is inadmissible to show negligence.' We must decide only whether or not the circumstances in the instant case create an exception which we should recognize and apply.
In the present case testimony was admitted showing repairs to the sidewalk after the injury occurred. The attorney for the defendant objected and his objection was overruled. From the recorded colloquy between the court and counsel we understand that the judge thought an exception...
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...with reference to the usual negligence action, in which a pedestrian fell into a hole in a sidewalk (see, e. g., City of Miami Beach v. Wolfe (Fla.1955) 83 So.2d 774) or a plaintiff was injured on unstable stairs (see, e. g., Hadges v. New York Rapid Transit Corporation (1940), 259 A.D. 154......
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...admissible as proof of the defendant's negligence in failing to make the repairs or changes prior to the accident. City of Miami Beach v. Wolfe, 83 So.2d 774 (Fla.1955); City of Niceville v. Hardy, 160 So.2d 535 (Fla. 1st DCA 1964), and see Section 90.407, Florida Statutes (Supp.1980), "Sub......
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...with reference to the usual negligence action, in which a pedestrian fell into a hole in a sidewalk (see, e.g., City of Miami Beach v. Wolfe (Fla.1955) 83 So.2d 774) or a plaintiff was injured on unstable stairs (see, e.g., Hadges v. New York Rapid Transit Corporation (1940), 259 A.D. 154, ......
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