Dewar v. City of Miami
Decision Date | 27 February 1957 |
Citation | 93 So.2d 58 |
Parties | Petronelia DEWAR and John Dewar, her husband, Appellants, v. CITY OF MIAMI, Florida, a municipal corporation, Ayares Finance Corporation, Reliable Motor Company, Inc., and Universal Finance Company, Incorporated, Appellees. |
Court | Florida Supreme Court |
Kelner & Lewis, Miami Beach, for appellants.
J. W. Watson, Jr., and Robert M. Haverfield, Miami, for City of Miami, Blackwell, Walker & Gray, Miami, for Ayares Finance Corp., Reliable Motor Co., Inc. and Universal Finance Co. Inc., appellees.
A determination of the existence or nonexistence of contributory negligence in a summary judgment situation provides the focal point for this opinion.
Petronelia Dewar brought a complaint charging the adjacent property owners and the city with negligence in regard to the creation of cracks in a sidewalk, and failure to repair such defects. Mrs. Dewar alleged that she fell while she was walking upon the defective sidewalk. The defendants charged Mrs. Dewar with contributory negligence, which would bar her claim. The trial judge entered summary judgment for the defendants from which Mrs. Dewar appeals:
'This cause came on to be heard, after due notice, upon the defendants', Ayares Finance Corporation, Reliable Motor Company, Inc., and Universal Finance Company, Incorporated, Motion for Summary Judgment, upon the pleadings, the deposition of Petronelia Dewar, and the affidavit of A. Schlossberg; and after counsel for the plaintiffs waived notice required by the rules for the filing of motions for summary judgment, the Court allowed the defendant, City of Miami, Florida, to join in the motion for summary judgment filed in behalf of the defendants, Ayares Finance Corporation, Reliable Motor Company, Inc., and Universal Finance Company, Incorporated, and after argument of counsel and the Court being otherwise duly and fully advised in the premises, it is thereupon
'Considered, ordered and adjudged, as follows:
(Amended order)
Mrs. Dewar's testimony on deposition is the only evidence which we find necessary to support the conclusion of the trial judge. Her testimony concerning her own action when she was faced with the defective sidewalk situation is not controverted. In the discovery deposition of Mrs. Dewar, which was before the trial court and considered in the disposition of the motion for summary judgment, she testified that some distance before she reached the point in the sidewalk where she was injured she saw that the sidewalk was cracked and broken. She testified that she didn't know exactly how far she was from it but that she did see that 'the whole area is pretty cracked up.' She further testified:
'
In Chambers v. Southern Wholesale, Inc., Fla., 92 So.2d 188, 190, we said, speaking through Crosby, Associate Justice,
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