Gonzalez v. City of Pensacola

• Citation: 61 So. 503,65 Fla. 241
• Parties: GONZALEZ et al. v. CITY OF PENSACOLA.
• Decision Date: 05 March 1913
• Court: Florida Supreme Court

61 So. 503

65 Fla. 241

GONZALEZ et al. v. CITY OF PENSACOLA.

Florida Supreme Court

March 5, 1913

Error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Action by May H. Gonzalez and others against the City of Pensacola. Judgment for defendant, and plaintiffs bring error. Reversed.

Syllabus by the Court

SYLLABUS

Where a municipality is authorized to grade its streets, such grading should be done without undue injury to private property, and should be done without negligence, unskillfulness, or malice and with due regard to the rights of abutting owners and others.

While a municipality is not liable in damages for consequential injuries to property abutting on a street, resulting from a lawful grading of the public streets, when due care is exercised in such grading, the municipality is liable in damages for its unlawful and negligent acts in grading streets, that proximately and substantially injure persons or property.

In an action against a municipal corporation for negligent injuries, the gist of the action is the negligence for which the corporation is liable; and it is essential to allege in the declaration ultimate facts showing the relation out of which arose the duty of the corporation to exercise appropriate care with reference to the rights of the plaintiff, and also the negligent act of omission or commission for which the corporation is responsible, that proximately caused the injury complained of; the specific ultimate fact that actually caused the injury being duly alleged, so that a definite issue may be presented for trial.

A declaration, in which it is in effect alleged that a municipality negligently and recklessly caused the streets to be dug down and formonths left in that condition before paving was done, whereby plaintiff's abutting lands were washed away and injured before the paving was done, because of the premature negligent and reckless lowering of the grade of the street, states a cause of action for admages.

COUNSEL John C. Avery, of Pensacola, for plaintiffs in error.

John B Jones, of Pensacola, for defendant in error.

OPINION

WHITFIELD J.

The amended declaration herein alleges:

'1. Plaintiffs sue the defendant, a municipal corporation in said state and county, existing under the laws of the state of Florida, for that the said defendant, as such municipal corporation, was and still is possessed and had and has control of two certain public streets, called Eighth avenue and Jackson street, respectively, and plaintiffs were and are the owners in fee of a certain lot on the southeast corner of said Eighth avenue and Jackson street; that while the plaintiffs so owned said lot as aforesaid, and while defendant was possessed and had control of said streets as aforesaid, the said defendant caused the grades of said streets to be lowered, by cutting them down many feet below the grade, as the same had been for many years; and the defendant was so careless and negligent in so lowering such grades and so cutting down said streets in front of plaintiffs' said lot, and was so careless and negligent in removing the soil of said streets, and in depriving plaintiffs' said lot of lateral support, and in continuing to leave plaintiffs' said lot without lateral support, that, when rains fell, great streams of water rushed through the said streets where they had been cut as aforesaid and lowered in front of plaintiffs' said lot, washing away the soil thereof, undermining plaintiffs' house on their said lot, causing it to sink and sag, and the walls thereof to fall, and the floors and windows to be thrown out of place, and otherwise greatly injuring said house and said lot whereon it stands, and greatly reducing the value thereof; and plaintiffs aver that by means of the premises they will continue to be damaged in the ways and in the manner aforesaid.

'2. And plaintiffs for a second count aver each and every the averments of the first count, and further aver that plaintiffs complained to the defendant of the negligent and careless acts aforesaid, and the damages resulting therefrom, and the defendant admitted its liability to plaintiffs on account thereof, and promised to remedy the said conditions so produced by it as aforesaid, but failed to do so, and the said conditions remain unchanged, and plaintiffs' damages of the kind and character as aforesaid continue to accrue and increase.

'3. And plaintiffs for a third count aver each and every the averments of the first count, and further aver that they were and still are without authority or right to erect in, upon, or along said streets any structures which would or will protect their said lot and their said house thereon from damages as aforesaid, although, as they in fact aver, the defendant might have erected such structures, but negligently failed and refused so to do, and failed to empower and direct plaintiffs to erect such structures, upon or along said streets in front of their said lot.

'To the damage of plaintiffs of five thousand ($5,000.00) dollars, and therefore they sue.'

A demurrer was interposed to the three counts on grounds that:

'1. That the facts alleged in said declaration are not sufficient to constitute any cause of action against the defendant.

'2. That the facts alleged in the declaration are not sufficient to show that defendant is liable to the plaintiffs for the damages alleged.

'3. It is not shown that said action was begun within six months after the alleged cause of action accrued.'

This demurrer was sustained, and by leave of court the following amended count was filed:

'The plaintiffs sue the defendant, a municipal corporation in said state and county, existing under the laws of the state of Florida, for that the said defendant, as such municipal corporation, was and still possessed and had and has control of two certain public thoroughfares, called Eighth avenue and Jackson street, respectively, and plaintiffs were and are the owners in fee simple of a certain lot on the southeast corner of the said Eighth avenue and Jackson street; that while the plaintiffs so owned the said lot as aforesaid, and while the defendant was possessed and had control of the said thoroughfares as aforesaid, the said defendant did lower the grade thereof for the purpose of paving them, neither of them having theretofore been paved, and thereupon, months before the defendant intended to or did begin the paving of said thoroughfares, and many months before it was necessary for the defendant to prepare for such paving, and before any provision was made therefor, pecuniary or otherwise negligently and recklessly caused the said thoroughfares to be dug down below their level, as the same had been for many years, several feet deeper along the entire front of plaintiffs' said lot, and for months thereafter, left them there so dug down, and constituting rough, uneven, and unsightly excavations, inconvenient and difficult for travel; whereas, had the defendant, after such digging down, within a reasonable time, proceeded to pave the said thoroughfares, they...