City of Orlando v. Heard

• Decision Date: 07 May 1892
• Citation: 11 So. 182,29 Fla. 581
• Parties: CITY OF ORLANDO v. HEARD.
• Court: Florida Supreme Court

11 So. 182

29 Fla. 581

CITY OF ORLANDO v. HEARD.

Florida Supreme Court

May 7, 1892

Appeal from circuit court, Orange county; JOHN D. BROOME, Judge.

Action by C. M. Heard against the city of Orlando to recover for personal injuries. Verdict and judgment for plaintiff. Defendant appeals. Reversed with directions.

Syllabus by the Court

SYLLABUS

1. In a declaration against a municipality it is alleged that the city possessed and controlled certain sidewalks on Church street and Orange avenue in the city, and suffered the same to be and remain in bad and unsafe repair and condition, and that divers planks, wherewith the said sidewalk was laid were suffered to be and remain broken and unfastened, by means whereof plaintiff was injured. Held, on demurrer to the declaration, that it was not bad because the place where the cause of action arose is not more specifically set forth further, that, if the declaration in respect to the allegation of locality was calculated to prejudice or embarrass a fair trial, the defendant could have applied to the court, under the statute, to have it amended in this particular.

2. In actions against municipal corporations for injuries received by reason of defective streets or sidewalks, it is not necessary to aver in the declaration that plaintiff was at the time of the injury exercising reasonable care, and the injury happened without his fault. Such an allegation is substantially involved in the averment that the injury complained of was occasioned by the defendant's negligence.

3. In actions against municipal corporations for injuries resulting from a failure to repair streets or sidewalks, the gist of the action is negligence on the part of the defendant corporation. Such corporations are required to exercise reasonable diligence in repairing defects in streets and sidewalks, after the unsafe condition of the street or sidewalk is known, or ought to have been known, to it, or its officers having authority to act for it, and it is essential to liability in such cases to allege in the declaration facts which show negligence on the part of the corporation. A general allegation that the municipal corporation negligently suffered and permitted the street or sidewalk to remain out of repair, without alleging knowledge of the defect, the time it was permitted to remain out of repair, or other facts showing negligence on the part of the municipal body, will not be sufficient.

COUNSEL

Alex St. Clair-Abrams, for appellant.

Andrew Johnson, for appellee.

OPINION

MABRY J.

The appellee sued appellant in the circuit court of the seventh judicial circuit for Orange county for personal injuries received by reason of an alleged unsafe sidewalk. The action is trespass on the case. A trial of the case resulted in a verdict and judgment for appellee, and appellant has appealed to this court. In view of the conclusion reached it is unnecessary to give the proceedings in the case further than the action of the court on the demurrer to the declaration. The essential allegations of the declaration are that the defendant, the city of Orlando, 'on the 3d day of January, A. D. 1887, was possessed and had control of certain public streets called 'Orange Avenue' and 'Church Street,' in the said city, in the county aforesaid, and ought to have kept the same in good and safe repair and condition, yet the defendant, not regarding its duty in that behalf, while it was so possessed and had the control of the said sidewalks, to wit, on the day aforesaid, there wrongfully and negligently suffered the same to be and remain in bad and unsafe repair and condition, and divers of the planks wherewith the said sidewalk was laid to be and remain broken and unfastened, by means whereof the plaintiff, who was then and there passing along and upon the said sidewalk, then and there necessarily and unavoidably tripped and stumbled upon and against one of said broken and unfastened planks of said sidewalk, and was thereby thrown and fell to and upon the said sidewalk, and the ground there, and thereby the left leg of the plaintiff was then and there dislocated and broken, and he became sick, lame,' etc.; and concluding with an allegation as to loss of time, suffering of pain, and the expending of divers sums of money to be healed, amounting in the aggregate of damages sustained to the sum of $15,000.

A demurrer to this declaration that it is bad in substance was overruled by the court.

Three objections are urged here against the sufficiency of this declaration:First, that it does not specifically set forth the place where the cause of action arose; second, that it does not allege that plaintiff was exercising due and ordinary care when the alleged injury was received and, third, that there is no allegation in the declaration that the defendant corporation had any knowledge of the defective sidewalk, or that a sufficient time elapsed after the defect occurred, and before the injury, for it to repair the same. The first objection does not in our judgment present any sufficient reason why the demurrer should have been sustained. It is true that the declaration does not specify the particular place in the sidewalk where the alleged injury occurred, but it does aver that the city possessed and controlled certain sidewalks on Church street and Orange avenue in said city, and suffered the same to be and remain in bad and unsafe repair and condition, and that divers planks wherewith the said sidewalk was laid were suffered to be and remain broken and unfastened, by means whereof the plaintiff, who was then and there passing along said sidewalk, necessarily and unavoidably tripped and stumbled and received the injury complained of in the declaration. By this declaration the defendant was informed that the injury complained of was received by reason of a defective sidewalk in the manner alleged on Orange avenue or Church street in said city. If the declaration in respect to the allegation of locality was calculated to prejudice or embarrass a fair trial of the action, the defendant could have applied to the court to have it amended in this particular. The statute provides that, 'if any pleading be so framed as to prejudice, embarrass, or delay the fair trial of the action, the opposite party may apply to the court or a judge to strike out or amend such pleading, and the court or any judge shall make such order respecting the same, and also respecting the costs, as such court or judge shall see fit.' Section 55, p. 826, McClel. Dig. Under this statute the defendant could have moved the court to require the plaintiff to more definitely specify the locality of the injury, upon its appearing to the court to be necessary to prevent embarrassment in the trial. Neither do we think that the second objection urged here against the declaration is good. Some decisions hold that in actions against municipal corporations for injuries received by reason of defective streets or sidewalks it is necessary for the plaintiff to aver in his declaration that he was at the time exercising reasonable care, and the injury happened without his fault. The decisions in Indiana are clear and pronounced in holding this view. In section 113, 1 Shear. & R. Neg., it is...