Deane v. Johnston

• Decision Date: 13 June 1958
• Citation: 104 So.2d 3
• Parties: H. H. DEANE, Appellant, v. Miss Myrtle JOHNSTON, Appellee.
• Court: Florida Supreme Court

Page 3

104 So.2d 3

65 A.L.R.2d 957

H. H. DEANE, Appellant, v. Miss Myrtle JOHNSTON, Appellee.

Supreme Court of Florida.

June 13, 1958.

Rehearing Denied July 16, 1958.

Roland W. Granat, Miami Beach, and Truett & Watkins, Miami, for appellant.

Nichols, Gaither, Green, Frates & Beckham, Miami, for appellee.

HOBSON, Justice.

Appellee, Miss Myrtle Johnston, sued for injuries sustained when she fell over appellant's weighing machine, which was located on the sidewalk at the intersection of Southeast First Street and Third Avenue in Miami. The case was tried before a jury, and a verdict was returned for the plaintiff in the amount of $40.000. Appeal is prosecuted from final judgment entered consequent upon this verdict.

There is little dispute about the facts of the case as developed at the trial, which may be stated as follows: On the date of the accident, appellee, who was employed in downtown Miami, left her office around 4 o'clock in the afternoon. She left earlier than usual because the area had been alerted for a possible hurricane. She proceeded to the intersection and waited for a bus there, as had been her daily practice for approximately eighteen months preceding the accident. On the sidewalk near the corner was a bus sign on a metal standard embedded in the concrete. Next to the standard was a weighing machine owned by appellant. It was an ordinary weighing machine or scale of the type often seen at public places, consisting of an upright portion and a base upon which a person might stand to have his weight recorded. The base of the weighing machine projected over two feet beyond the standard supporting the bus sign and occupied a part of the sidewalk. The scale had been in this location for some seven or eight years.

Appellee knew the scale was at the location where it had always been. After she had waited for the bus some ten minutes, standing immediately south of the bus sign standard and the weighing machine, she heard her employer call her name and saw that he was heading west on Southeast First Street in his automobile. He had stopped for a stop light. She turned and started toward him, but tripped over the scale and fell. When she fell, she was watching the traffic light.

Appellee had previously undergone a 'reconstruction' of her left leg necessitated by a malignant tumor of the femur. The reconstruction consisted of two surgical operations in which portions of the bone affected by the malignance were removed and new bone grafted in to strengthen the leg. This difficulty began in 1946 and continued until the latter part of 1948. Appellee wore a brace until the spring of 1950. She was not wearing a brace or using crutches at the time of the accident, but she testified that she had to exercise caution in her movements, and 'had to be very careful.' There was a certain amount of weakness in the ligaments and bone structure of her thigh, and she always moved slowly, as the doctor had advised her to do.

After she tripped over the scale, she was taken home by her employer and examined by the same doctor who had previously treated her left leg. Bed rest was prescribed. The left leg was painful and discolored, but four weeks after the accident appellee was able to return to work on crutches. In January of 1954 her left leg broke, and in June of the same year (or over a year and a half after the accident) the leg was required to be amputated.

Appellant testified that he owned the scale in question and that he had an occupational license to engage in the business of operating weighing scales in the city of Miami. He did not, however, have a permit from the police or fire department to place the scales upon the sidewalk. A city ordinance, introduced in evidence by the plaintiff, provides in part:

'No person shall obstruct or cause to be obstructed any street in this city, or impede the general movement of traffic without first having obtained a permit from both the police and fire department.'

It appears from the definition section of the ordinance that the sidewalk is considered part of the street.

Appellee asserts that each time the police carried appellant's scales away appellant would get them from the pound and put them back on the sidewalk, but the record is not so clear. Appellant's testimony was vague on this point when read in its entirety, but he did testify unequivocally that it had never happened in the location in question. Appellant was seventy years of age at the time of trial and testified that he was in poor health and that his memory was impaired. There was no evidence by any other witness that appellant's scales were ever carried away by the police.

Appellant first contends that appellee was guilty of such contributory negligence as to bar recovery as a matter of law. Appellee parries this contention by asserting, under cross-assignment of error, that appellant created a public nuisance and that in such case contributory negligence is not a defense.

The last specific word by this court on the defense of contributory negligence in a nuisance case was delivered in 1850 in City of Tallahassee v. Fortune, 3 Fla. 19, wherein we held that a plaintiff claiming damages as the result of a nuisance must show that he acted with common and ordinary care. In so holding, this court relied upon the celebrated case of Butterfield v. Forrester, 11 East 60, 103 Eng.Rep. 926, 19 Eng.Rul.Cas. 189, wherein the plaintiff had been held barred from recovery by his own negligence although the defendant had been responsible for a nuisance (a pole across a public highway). But appellee in the present case refers us to McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391, 57 A.L.R. 1, and certain related cases since decided (e.g., Delaney v. Philhern Realty Holding Corp., 280 N.Y. 461, 21 N.E.2d 507; Beckwith v. Town of Stratford, 129 Conn. 506, 29 A.2d 775; and DeLahunta v. City of Waterbury, 134 Conn. 630, 59 A.2d 800, 7 A.L.R.2d 218).

In the McFarlane case, in an opinion by Judge Cardozo, it was held that where a nuisance grows out of negligence, the plea of contributory negligence is available to the defendant and may bar recovery. Judge Cardozo suggested, however, by way of dictum, that a different rule might apply where the nuisance was 'absolute'.

What Professor Seavey has referred to as 'the first misinterpretation of Judge Cardozo's words' (Seavey, Nuisance: Contributory Negligence and Other Mysteries, 65 Harvard L.R. 984, 991) was made in Delaney v. Philhern Realty Holding Corp., supra, 280 N.Y. 461, 21 N.E.2d 507, where the plaintiff had tripped over a board covering a pipe laid across the sidewalk. It was held that if the permit issued to the contractor did not comprehend the laying of the pipe in such a manner the nuisance was absolute and contributory negligence should not be considered, but if the contractor was authorized to lay the pipe and board across the sidewalk and did so in a negligent manner, the plaintiff's negligence was a factor for consideration. A judgment for the plaintiff was reversed and a new trial granted because the trial judge had not properly distinguished between the two types of nuisance. Judge Crane, concurring only in the result, stated in part:

'There has been so much written and said about the defense of negligence in an action of nuisance that the subject has become a mystery, smothered in verbiage.

'The law in my judgment is, and should be, that except in rare cases of absolute nuisance of extreme danger, the negligence of the plaintiff contributing to the injury may be a bar to recovery. * * * To try to distinguish between the different kinds of nuisance or the degree of nuisance, and the cases where the negligence of the plaintiff would or would not bar recovery, has led the courts into a maze.' 21 N.E.2d 507, 510.

It appears, from a review of the cases, that Judge Crane's words accurately described the situation.

In Connecticut the line of cases attempting to distinguish between an absolute nuisance and one growing out of negligence has culminated in DeLahunta v. City of Waterbury, supra, 134 Conn. 630, 59 A.2d 800, 7 A.L.R.2d 218, wherein a city put a traffic stanchion in a place found to be dangerous. It was held that the plaintiff would not be barred by contributory negligence if the jury should find that the stanchion created an absolute nuisance. The court defined this as an intentionally created condition, stating that for an absolute nuisance it was necessary to find only 'that the creator of (it) intended to bring about the conditions which are in fact found to be a nuisance' (59 A.2d 802-803). This rule would in effect make the creator of a condition found, after the fact, to have been a nuisance an insurer of the safety of all persons who might conceivably be injured by it, regardless of their own conduct or whether or not the condition might be described as inherently or extremely dangerous. The rule, however, has been held to prevail or stated by way of dictum by other courts. See Hammond v. County of Mommouth, 117 N.J.L. 11, 186 A. 452; Thompson v. Petrozzello, 5 N.J.Misc. 645, 137 A. 835; Terrell v. Alabama Water Service Co., 245 Ala. 68, 15 So.2d 727; Gaines v. Village of Wyoming, 147 Ohio St. 491, 72 N.E.2d 369; Taylor v. City of Cincinnati, 143 Ohio St. 426, 55 N.E.2d 724, 155 A.L.R. 44; Llewellyn v. City of Knoxville, 33 Tenn.App. 632, 232 S.W.2d 568; Johnson v. City of Alcoa, 24 Tenn.App. 422, 145 S.W.2d 796; and Kincaid v. Chicago, R. I. & G. Ry. Co., Tex.Civ.App., 119 S.W.2d 1084.

In this illuminating article, Nuisance: Contributory Negligence and Other Mysteries, 65 Harv.L.R. 984, Professor Seavey points out that the distinction between the intentional creation of a defect in the public way and the failure to keep it in repair has only recently come into prominence. He cits numerous cases wherein contributory negligence has been a defense although the defendant intentionally created a dangerous situation on the...