Finkelstein v. Brooks Paving Co.

• Decision Date: 11 December 1958
• Docket Number: No. 58-205,58-205
• Parties: Mannie FINKELSTEIN, Appellant, v. BROOKS PAVING COMPANY, Inc., a Florida corporation, Marbaugh Construction Co., a Florida corporation, and Town of North Bay Village, Appellees.
• Court: Florida District Court of Appeals

Page 205

107 So.2d 205

Mannie FINKELSTEIN, Appellant, v. BROOKS PAVING COMPANY, Inc., a Florida corporation, Marbaugh Construction Co., a Florida corporation, and Town of North Bay Village, Appellees.

No. 58-205.

District Court of Appeal of Florida, Third District.

Dec. 11, 1958.

Rehearing Denied Dec. 31, 1958.

Roland W. Granat, Miami Beach, for appellant.

Dixon, DeJarnette, Bradford & Williams; Brown, Dean, Adams & Fischer, and Blackwell, Walker & Gray, Miami, for appellees.

CARROLL, CHAS., Chief Judge.

Appellant sued North Bay Village and the contractor and subcontractor engaged in resurfacing its streets, asking damages for personal injuries and property damage which resulted when he drove his automobile onto an obstruction in a street under repair. His complaint was dismissed, on the granting of defendants' motions for summary judgment, and this appeal followed.

The motions for summary judgment were heard on the pleadings on interrogatories addressed to the parties and the answers thereto, and on a discovery deposition of plaintiff. From these the following facts were revealed. A number of streets, including South Treasure Drive where this accident occurred, were and for a considerable time had been torn up for repairs and resurfacing. Certain of those streets, including South Treasure Drive, were open for traffic, notwithstanding their condition of being under repair. Appellant was familiar with the status of the streets, and had driven upon the street in question while in its condition of disrepair. On the evening of the accident, at 11:30 o'clock P.M., after letting out a friend on a nearby street, appellant again traversed South Treasure Drive in his automobile. He observed, when 25 feet from it, and proceeding at a speed of 12 to 15 miles per hour, a covered manhole extending above the street by a height which appeared to him to be five or six inches. He did not turn aside to avoid this elevated manhole, but on the contrary, believing that he could safely negotiate it, attempted to drive over it. It developed that there was a depression in the roadway just before the manhole and unseen by the appellant, which resulted in a failure of the front axle to clear the obstruction, with consequent damage to the automobile and injuries to his person.

The determinative question is whether the trial court was in error in holding that the appellant driver was guilty of contributory negligence as a matter of law. We conclude that the trial court was not in error in so holding, and that the judgment should be affirmed.

In contending that the question of his negligence presented a triable issue, the appelllant cited and relied on the case of Long v. City of Winter Park, Fla.1954, 70 So.2d 576, where a passenger in an automobile sued following an accident in which the automobile struck a raised covered manhole located near the center of a street. In that case the Supreme Court held, on the facts presented, that there was a jury question as to whether the elevated manhole was visible, and was seen or should have been seen by the driver and was such as to convey an awareness of the danger it represented.

Each such case must rest on its own facts. Our decision in this case is not controlled by or in conflict with the decision in the Long case, because of material differences in the facts. The Long case involved a street open for regular public use, and not under repair. In fact, the manhole may not have been clearly visible, and may not have been seen, or its danger apparent. In the instant case the condition of the street under repair was known to the appellant driver, who admitted having seen the obstruction in question while twenty-five feet away. The confidence which a driver could have in the safety of the street in the Long case was denied to the appellant driver in this case when...