City of Tallahassee v. Coles

• Decision Date: 05 December 1941
• Citation: 4 So.2d 874,148 Fla. 606
• Parties: CITY OF TALLAHASSEE v. COLES.
• Court: Florida Supreme Court

4 So.2d 874

148 Fla. 606

CITY OF TALLAHASSEE v. COLES.

Florida Supreme Court

December 5, 1941

James Messer, Jr., of Tallahassee, for plaintiff in error.

Oven &amp Oven, of Tallahassee, for defendant in error.

THOMAS, Justice.

Hattie L. Coles sued the City of Tallahassee to recover for painful injuries alleged to have been suffered by her when she stumbled and fell, because of a defect in the street, as she alighted from an automobile and attempted to walk to a house nearby. She alleged in her declaration that she was, at the time 'exercising due care and caution for her own safety' and that the unsafe and dangerous condition of the street was known or should have been known to the defendant 'for many weeks prior to, up to and including the 5th day of September, A. D. 1940,' the date of the accident.

Issue was formed by pleas of not guilty and contributory negligence.

Giving a version differing somewhat from the averments of her pleading, the plaintiff, herself, testified that she parked in the street made a call and upon returning to the car tripped and was injured. The street was variously described by the plaintiff's witnesses as being 'washboardy' with ridges running crosswise; as being creased with ruts running lengthwise; as having depressions the size of 'wash basins,' and as having on its surface a few stones about the size of 'hen eggs,' but it is clear that the accident was caused by the plaintiff stepping 'on a rut' for this is her positive testimony and no one was present to see her fall.

The city engineer testified that memoranda were kept of the occasions when the dirt streets in Tallahassee were scraped and graded and his record was introduced to show that on the 14th, 19th and 27th of August, immediately preceding the accident, the street where the plaintiff was injured had received this treatment and that such streets were always 'scraped to refusal,' that is, until it was impossible to 'get * * * any more level or better ground.' The operator of the road machine which was used for the purpose recalled grading and scraping the street in question on these three separate days before the accident and stated that he had not notice any deep ruts or anything unusual about its condition. This testimony of the city was not rebutted.

We wrote in a recent opinion (City of St Petersburg v. Roach, 4 So.2d 367, 368), referring to McQuillan Municipal Corporations, 2d Ed., Volume 7, page 163 as authority for the statement, that one could not prevail in a suit of this nature without showing that the imperfection had been in existence a sufficient length of time for the city 'to have discovered it by the exercise of reasonable care and to have repaired it.' The plaintiff in the instant case was evidently conscious of this burden when she alleged in her declaration that 'although the defendant knew or should have known' of the dangerous condition of the street yet it 'permitted the said street to be and remain out of repair * * * on the 5th day of September, A. D. 1940 [when the accident occurred] as said street had been for many weeks prior to said date.' There was not only a dearth of testimony to establish negligence on the part of the city in allowing the street to remain unsafe after its defective condition became known or in failing to make repairs when the defect had existed so long that it should have been discovered but, on the contrary, the undisputed testimony of the defendant was that on three separate occasions within four weeks of the accident, the last time but nine days before, the dirt street had been scraped and graded to the point of 'refusal.'

As long ago as in 1982 this...