Richardson v. Fountain
| Decision Date | 05 June 1963 |
| Docket Number | No. 3318,3318 |
| Parties | Harry R. RICHARDSON, Appellant, v. H. Nell FOUNTAIN and Virginia Fountain, d/b/a Fountain's Department Store, Appellees. |
| Court | Florida District Court of Appeals |
Jones, Adams, Paine & Foster, West Palm Beach, for appellant.
Earnest, Pruitt & Schulle, West Palm Beach, for appellees.
STURGIS, WALLACE E., Associate Judge.
This is an appeal from a judgment for defendants entered pursuant to verdict of the jury in a negligence action.
The plaintiff, an adult 6 feet 4 inches tall, was injured when in walking on the sidewalk in front of defendants' store and along a public street in Lake Worth, Florida, he ducked his head under the flap of defendants' awning, which extended across the sidewalk, and upon straightening up struck his head on a metal bar on the inside and forming part of the awning. At that time there was in effect a penal ordinance of the city providing in part:
'a. Height Above Public Sidewalk: No metal part of any canopy or awning shall be less than seven feet six inches (7'6"") from the top of such sidewalk or other public way, and no part of the cloth or fringe thereof shall be less than six feet six inches (6'6"") from the top of such sidewalk or other public way.'
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'3. All awnings must be equipped with not less than two (2) supporting or fire chains, one end of which fastens to the front bar or to the side arm not over six inches (6"") back from the front bar, and the other end of which fastens to a point just under the head of the awning but never to the head rod or head rod fastenings.'
The complaint charged negligence based on an alleged violation of the ordinance and defendants pleaded, inter alia, contributory negligence of the plaintiff.
The evidence is uncontradicted that prior to the accident the horizontal metal bar against which plaintiff struck his head was so installed that it was normally suspended only 7 feet 3 inches from the top of the sidewalk, which violated the statute and will later be discussed in relation to the question of liability. It is also uncontradicted that the anchor end of the horizontal arm was fitted with a collar attached to the arm by means of a swivel, which collar in turn fitted over a bracket attached to the store front in a vertical position, the lower extremity of the bracket being approximately 6 feet 1 inch above the sidewalk surface. This arrangement permitted the ends of the horizontal arms of the awning frame to float or slide vertically along the bracket, thus facilitating the raising of the awning from its extended position over the sidewalk. As stated, the horizontal arm extending over the sidewalk was normally maintained at a height of 7 feet 3 inches above the level of the sidewalk. This was done by means of a rope and pulley arrangement attached to the arm; and when properly secured, the rope prevented the collar end of the arm from sliding below the 7 feet 3 inch level to the lower extremity of the bracket.
Since the normal operating height of the horizontal arm above the sidewalk was 7 feet 3 inches, it is evident, considering plaintiff's height of 6 feet 4 inches, that it would have been physically impossible for him to strike his head thereon were it not for the fact that at the time of the accident the collar end of the bar had for some reason, not directly explained by the evidence, dropped to such a level on the bracket by which it was attached to the building as to permit plaintiff's head to strike it. Expert testimony was adduced on behalf of defendants with respect to the operation of the awning mechanism, from which a reasonable inference may be drawn that the abnormal position of the metal arm was occasioned by a malfunction of the operating mechanism of the awning. It is admitted that for a long period of time prior to this accident plaintiff had regularly and without any difficulty walked under the awning.
The issue on this appeal presents a pure question of law. The sufficiency of the evidence to support the verdict, assuming contributory negligence is available as a defense, is not challenged.
Requested instructions by plaintiff to the effect that contributory negligence was not available as a defense were denied and the jury was charged with the law governing contributory negligence. The sold question for determination here is whether or not contributory negligence is available as a defense to this action in which defendants' alleged negligence is their violation of the subject penal ordinance....
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In re Std. Jury Instructions in Civil Cases -- Report No. 09-01
...person will adhere. The jury is not at liberty to determine that the violation of such a standard is not negligence. Richardson v. Fountain, 154 So.2d 709 (Fla. 2d DCA 1963), and cases cited at 154 So.2d at 711; 38 Negligence § 158, at 82729; but compare Mastrandrea v. J. Mann, Inc., 128 So......
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Marks v. Delcastillo
...375 So.2d 911 (Fla.1979); Schulte v. Gold, 360 So.2d 428 (Fla.3d DCA 1978), cert. denied, 368 So.2d 1367 (Fla.1979); Richardson v. Fountain, 154 So.2d 709 (Fla.2d DCA 1963), cert. denied, 157 So.2d 818 (Fla.1963).8 It is self-evident that the dynamite was known to Marks Brothers to be dange......
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Lindsey v. Bill Arflin Bonding Agency Inc., 93-978
...415 So.2d 1360 (Fla.1982); Schulte v. Gold, 360 So.2d 428 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1367 (Fla.1979); Richardson v. Fountain, 154 So.2d 709 (Fla. 3d DCA), cert. denied, 157 So.2d 818 (Fla.1963). Violation of a building code "constitute[s] prima facie evidence of negligence.......
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Groh v. Hasencamp, 81-41
...was promulgated for the protection of the public in general rather than a particular class of persons, see generally, Richardson v. Fountain, 154 So.2d 709 (Fla.2d DCA), cert. denied, 157 So.2d 818 (Fla.1963); and (2) injury from kicking horses was obviously not the type of harm the zoning ......
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Construction cases
...1360 (Fla. 1982); Schulte v. Gold , 360 So.2d 428 (Fla. 3d DCA 1978), cert. denied , 368 So.2d 1367 (Fla. 1979); Richardson v. Fountain , 154 So.2d 709 (Fla. 3d DCA 1963), cert. denied , 157 So.2d 818 (Fla. 1963). Violation of a building code constitutes prima facie evidence of negligence. ......