Fendrick v. Faeges

• Decision Date: 15 February 1960
• Docket Number: No. 58-330,58-330
• Parties: Milton FENDRICK and Alvin Sheppard, each individually and as co-partners trading and doing business as Sunland Service Station, Appellants, v. Nedine FAEGES, as Executrix of the Estate of Jacob Faeges, deceased, Appellee.
• Court: Florida District Court of Appeals

Page 858

117 So.2d 858

Milton FENDRICK and Alvin Sheppard, each individually and as co-partners trading and doing business as Sunland Service Station, Appellants, v. Nedine FAEGES, as Executrix of the Estate of Jacob Faeges, deceased, Appellee.

No. 58-330.

District Court of Appeal of Florida, Third District.

Feb. 15, 1960.

Rehearing Denied March 3, 1960.

Roland W. Granat, Miami Beach, for appellants.

Lawrence Hastings and Phillip Goldman, Miami, for appellee.

HORTON, Chief Judge.

This appeal, in a personal injury action, is from a final judgment rendered after a jury verdict for the appellee-plaintiff. This action was originally begun by Jacob Faeges who, prior to trial, died, and the suit was continued by the executrix of his estate. The verdict was rendered against the appellants-defendants and Southern Bell Telephone & Telegraph Company, a co-defendant. On appeal, Southern Bell Telephone & Telegraph Company was dismissed by an order of this court dated November 28, 1958.

Faeges, the original plaintiff in the court below, was a business invitee in a filling station operated by the appellants, and was injured as a result of a fall while stepping out of a public telephone booth located on the premises. The telephone booth was placed on a ledge approximately ten inches above the level of the surrounding pavement and its front or entrance faced the ledge. The complaint charged the defendants with negligence in maintaining the telephone booth in a dangerous and unsafe condition, and that such unsafe condition was known of should have been known by the appellants, and that this negligence was the proximate cause of the plaintiff's injuries.

The appellants make numerous contentions of alleged error growing out of the trial of the cause. In substance, the appellants contend (1) that the plaintiff was guilty of contributory negligence because the condition, if an unsafe one, was open and obvious and one which was easily discernable by the ordinary use of plaintiff's senses; (2) that even though the alleged condition may have been dangerous and unsafe, the evidence failed to show that such condition was the proximate cause of the injuries sustained; (3) that a statement constituting an alleged admission against interest, given by the plaintiff prior to suit, was erroneously excluded from evidence by the trial judge; and (4) that the jury verdict of $23,700 was excessive in view of the injuries, medical expenses and lack of proof of impairmant in earning capacity or loss of earnings.

Considering the appellants' first two contentions as to the question of contributory negligence and proximate cause, we have reviewed the record and conclude that these were questions of fact sufficiently raised by the evidence to require a jury determination. There was evidence that the booth...