City of Tallahassee v. Hawes
| Decision Date | 08 February 1921 |
| Citation | 87 So. 765,81 Fla. 123 |
| Parties | CITY OF TALLAHASSEE v. HAWES. |
| Court | Florida Supreme Court |
Rehearing Denied March 25, 1921.
Error to Circuit Court, Leon County; E. C. Love, Judge.
Action by Thomas J. Hawes against the City of Tallahassee. Judgment for plaintiff, and defendant brings error.
Affirmed.
Syllabus by the Court
Injury by falling of awning because of defective post jerked away by horse hitched thereto held to present jury question. Where a declaration alleges that, as a result of the city's negligence, a pedestrian was injured by the falling of an awning over a city sidewalk, when a defectively secured support post was jerked from under the awning by a horse hitched thereto, and the evidence shows without objection that 'hitching horses to posts on that street was a pretty common practice,' and that the defective condition of the post supporting the awning was apparent and had been so for some weeks, and the same post had a short time before been jerked from its proper place by a horse hitched thereto a verdict and judgment for the plaintiff are not erroneous as matter of law.
City must see that awnings over sidewalk do not injure pedestrians. It is the duty of a city to take due care that awnings over the sidewalk and the posts supporting them are so constructed and maintained that in their ordinary, usual or customary uses they would not injure pedestrians properly passing along the sidewalk.
City liable in respect to awnings for injuries which might be reasonably contemplated. A city's liability for allowing awnings and supporting posts to be maintained over sidewalks covers injuries caused in the ordinary, usual, or customary uses of posts supporting the awnings, where such uses may reasonably have been contemplated as the proximate result of negligence in maintenance of such awnings and posts, whether such result was contemplated or not.
Declaration held to allow proof of injury proximately resulting from fall of awning. In a pedestrian's action against a city for personal injuries, under a declaration alleging that a house was tied to a post supporting an awning over the sidewalk and that the horse pulled from under the awning, which, because of its unsafe, insecure, and defective condition in not having the post supporting it mortised into or fastened to the sidewalk, and in not being securely and properly fastened, 'instantly fell upon the plaintiff,' plaintiff could prove injury proximately resulting from an accident in the ordinary, usual, or customary use of the post supporting the awning.
Myers & Myers, of Tallahassee, for plaintiff in error.
W. J Oven, of Tallahassee, for defendant
The declaration herein alleges that the city did 'wrongfully and negligently suffer and permit a certain sidewalk on' a named street in the city 'to become and remain in such an unsafe, insecure, and defective condition and dangerous to pedestrians passing along and over said sidewalk'; that while plaintiff was walking along said sidewalk in front of a stated building 'under the awning projecting therefrom and over said sidewalk, a horse, which was tied to the posts or supports supporting the outer edge of said awning and running from the said awning down to and resting upon the surface of said sidewalk, became frightened and lunged or jerked at the lines with which said horse was so tied to said post, and by such lunge or jerk pulled from under the said awning the post or support to which said horse was fastened, whereupon, and without any knowledge or warning to the plaintiff, or without any knowledge on his part previous thereto of the defective and dangerous condition of said sidewalk to pedestrians passing thereover, the said awning, by reason of its unsafe, insecure, and defective condition in not having the post supporting it mortised into or fastened to the sidewalk, and in not being securely and properly fastened to the said building, instantly fell upon the plaintiff' injuring him. A demurrer to the declaration was overruled, and at the trial on a plea of not guilty, verdict and judgment for the plaintiff in $1,000 damages were rendered, and the defendant took writ of error.
In considering this unusual case, the court is assisted by able briefs and oral arguments by counsel for the parties.
The defendant's duty was to take due care that the awning and the posts supporting it were so constructed and maintained that in their ordinary, usual, or customary uses they would not injure pedestrians properly passing along the sidewalk. The defendant's liability in damages covers injuries caused in the ordinary, usual, or customary use of the posts supporting the awnings, where such injuries reasonably may have been contemplated as a proximate result of negligence in the erection and maintenance of the awning and posts on or over the sidewalk, whether such result was actually contemplated or not. See City of Tallahassee v. Fortune, 3 Fla. 19, 52 Am. Dec. 358; 13 R. C. L. p. 311; City of Jacksonville v. Drew, 19 Fla. 106, 45 Am. Rep. 5; City of Pensacola v. Jones, 58 Fla. 208, 50 So. 874; Key West v. Baldwin, 69 Fla. 136, 67 So. 808.
In Janes v. City of Tampa, 52 Fla. 292, 42 So. 729, 120 Am. St. Rep. 203, 11 Ann. Cas. 510, the city negligently permitted lumber, etc., to occupy a large part of a street that was being used for horse vehicle traffic, and a team, without fault or negligence on the part of the driver, becoming frightened, was injured by running into the lumber, etc., in the street. Such an injury being a consequence that, from the ordinary use of the street, should have been contemplated by the city in negligently permitting the dangerous obstruction to occupy an undue portion of the street then being used for usual street purposes, it was held that a cause of action against the city was alleged.
In Hembling v. City of Grand Rapids, 99 Mich. 292, 58 N.W. 310, a horse hitched to a plank in a wood sidewalk jerked the plank out and a passing pedestrian stepped in the hole and was injured. In that case it did not appear that hitching a horse to planks in the sidewalk in that city was an ordinary, usual, or customary use of the planks, so as to make it the duty of the city to take care that the planks in the sidewalk could not readily be jerked out of place by a horse hitched thereto as pedestrians are passing by. The city was held to be not liable for the injury to the pedestrian.
In this case the declaration alleges that a horse was tied to a post supporting an awning over the sidewalk, and that as plaintiff passed along the sidewalk the horse pulled the post from under the awning, whereupon 'the said awning, by reason of its unsafe, insecure, and defective condition in not having the post supporting it mortised into or fastened to the sidewalk, and in not being securely and properly fastened to the said building, instantly fell upon the plaintiff.'
Under these allegations the plaintiff could prove an injury proximately resulting from an accident in the ordinary, usual, or customary use of the post supporting the awning. It is not alleged that it was customary in the city to hitch a horse to posts supporting awnings over sidewalks, but no ground of the demurrer to the declaration goes specifically to this point. And even if the declaration was technically defective in this particular, and the demurrer was good, the error, if any, was, under the provisions of chapter 6223, Acts of 1911, rendered immaterial when it was without objection shown by testimony that 'hitching horses to posts on that street was pretty common practice,' and that the post had been 'not safe' for a month or two, and that officers of the city passed there from time to time, to whom the condition of the post would have been apparent if they had examined it. The bottom of the post had been pulled out of its proper place by a horse a short time before, but the post still supported the awning.
The defendant could not have been misled by the failure to allege that it was customary to hitch horses to posts supporting awnings over sidewalks in the city, and as the plaintiff proved a liability without objection under allegations that do not wholly fail to state a cause of action, the error, if any, in overruling the demurrer to the declaration was not material after verdict. Chapter 6223, Acts 1911; Tampa & J. R. Co. v. Crawford, 67 Fla. 77, 64 So. 437; Standard Phosphate Co. v. Lunn, 66 Fla. 220, 63 So. 429; De Funiak Springs v. Perdue, 69 Fla. 326, 68 So. 234; Gonzalez v. City of Pensacola, 65 Fla. 241, 61 So. 503, Ann. Cas. 1915C, 1920; National Surety Co. v. Williams, 74 Fla. 446, 77 So. 212.
The awning was supported by two posts. The post pulled out by the horse was not fastened to the sidewalk, but merely rested on the outer edge of the sidewalk.
It being 'pretty common practice' to hitch horses to awning posts on that street, it reasonably should have been contemplated that an insecure post supporting a wood and galvanized iron awning over the sidewalk might be pulled out by a horse hitched thereto, thus precipitating the heavy awning upon any pedestrian passing by on the sidewalk, particularly should such a happening have been contemplated when the post had theretofore been pulled out of its place by a horse hitched to it, and the post, being the main support of the awning, had remained in a noticeably unsafe condition for some days.
In view of the uncontested testimony as to the 'common practice' of hitching horses to posts supporting awnings over the sidewalks on that street, and of the condition of the post before and at the time of the injury, technical errors, if any, in giving or refusing charges, were not...
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