Sandford v. Firestone Tire & Rubber Co., No. 2498
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | WHITE; ALLEN, Acting C. J., and KANNER |
| Citation | 139 So.2d 916 |
| Parties | Francis H. SANDFORD, Appellant, v. FIRESTONE TIRE & RUBBER COMPANY, a Corporation, Appellee. |
| Docket Number | No. 2498 |
| Decision Date | 06 April 1962 |
Page 916
v.
FIRESTONE TIRE & RUBBER COMPANY, a Corporation, Appellee.
Rehearing Denied April 26, 1962.
Page 917
Bobby A. Webb and J. Hal Conner, Summerlin & Conner, Winter Haven, for appellant.
Paul Ritter, Winter Haven, for appellee.
WHITE, Judge.
Appellant Francis H. Sandford, plaintiff below, seeks reversal of judgment on directed verdict for the defendant on the first count of the complaint and reversal of judgment for the defendant notwithstanding a $7,000.00 verdict for the plaintiff on the second count of the complaint. The prime question on appeal pertains to the judgment notwithstanding the verdict.
This is a slip and fall case. The plaintiff lived near a service station owned by the defendant Firestone Tire & Rubber Company. On one of his daily walks to down town Winter Haven the plaintiff was proceeding on the sidewalk with one William Taylor. As they approched the defendant's station the sidewalk in front of them was blocked by a parked truck owned by the defendant. The plaintiff and Taylor proceeded around the truck and onto defendant's paved premises and, while speaking to an employee of the defendant, plaintiff slipped on a 'spot' of oil and fell
Page 918
and sustained painful and costly personal injuries. The parties pleaded the usual issues of negligence and contributory negligence.The plaintiff did not see the oil spot until after he fell. William Taylor testified that he and the plaintiff were walking together when the plaintiff fell and that he, Taylor, likewise did not see the oil spot until after the plaintiff fell. He stated that he heard someone say that a customer was looking at a lawn mower and had turned it upside down causing the oil to spill out. An employee of the defendant mentioned that someone was supposed to be getting something to clean up the oil. No one was left to guard the area where the oil was spilled, nor was any warning given. This was verified by W. F. Payne, a then employee of the defendant. He testified that a prospective customer turned a used mower over to examine the blade and the oil ran out; that he, the witness, went into the building to get some 'oil dry' to clean it up but that meanwhile, before his return, the plaintiff slipped and fell. There was testimony that the spot of oil was amber or black in color and four to five inches in diameter
The two counts of the complaint were identical except that the first count alleged the dangerous condition to be latent while the second count alleged the same condition to be patent. A verdict was directed for the defendant as to the plaintiff's first count at the close of plaintiff's case, and the trial proceeded on the second count. The trial court took the view that the status of the plaintiff was that of an invitee if the jury should find that the defendant's parked truck blocked the sidewalk and caused the plaintiff to proceed around it onto the defendant's premises. This ruling followed the holding in Virginia Stage Lines v. Spencer, 1946, 184 Va. 870, 36 S.E.2d 522, wherein a bus was parked in such manner as to force children off the highway and onto a concrete area in front of a filling station which the bus line had leased as its terminal. Injuries were inflicted on the children by the defendant's bus and the court held that the children were implied invitees toward whom it was the defendant's duty to exercise reasonable care.
In the instant case, after the plaintiff rested with reference to the second count of his complaint, the defendant moved for a directed verdict and the court reserved ruling. The case was submitted to the jury who returned a verdict for the plaintiff, assessing the damages at $7,000.00. The court thereafter, in ruling on the defendant's pre-verdict motion, entered judgment for the defendant notwithstanding the verdict. The court noted that it is common knowledge that the surface of a filling station area is frequently spotted with oil from motor vehicles which are supplied with oil and gasoline in such installations. 'Persons walking in such areas,' said the court, 'are charged with such knowledge and their consequent duty to observe that which can be observed for their own protection. It is obvious from the evidence in this case that had the plaintiff looked down upon the area in which he would step, he would have been the oily spot and avoided it.'
The plaintiff's principal points on appeal gravitate naturally to the question that concerns us, viz., whether or not it was error to enter judgment notwithstanding the verdict. There was undoubtedly some evidence tending to show negligence on the part of the defendant. Assuming that the plaintiff was charged with knowledge that service station areas are frequently spotted with oil, did his failure to observe and avoid this particular spot amount to contributory negligence as a matter of law? If so, the judgment must be affirmed; if not, the judgment must be reversed.
The judgment under assault was based upon the rationale of Tweedale v. City of St. Petersburg, Fla.App.1961, 125 So.2d 920; Bowles v. Elkes Pontiac, Fla.1953, 63 So.2d 769; and Andrews v. Narber, Fla.1952,
Page 919
59 So.2d 869. In the first case plaintiff Tweedale was an invitee at a municipal swimming pool and slipped as he was entering the shower room before using the pool. The plaintiff contended that the slippery floor constituted a hidden danger...To continue reading
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Milby v. Pace Pontiac, Inc., No. 4951
...N.Y.S. 39. It was, therefore, error to dismiss the plaintiff's amended complaint. Sanford v. Firestone Tire and Rubber Co., Fla.App.1962, 139 So.2d 916. In the Hanley case, supra, the plaintiff fell on a step-down which extended 13 1/2 inches beyond a door. The difference in floor levels wa......
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Curry v. Case, No. 71-512
...Fla.App.1958, 99 So.2d 871; Barr v. Mizrahi, Fla.App.1960, 124 So.2d 508; Sandford v. Firestone Tire & Rubber Company, Fla.App.1962, 139 So.2d 916; Brookbank v. Mathieu, Fla.App.1963, 152 So.2d 526; Miller v. Griffin, Fla.App.1963, 154 So.2d 333; Shaw v. Puleo, Fla.1964, 159 So.2d 641; Beni......
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Pahucki v. Armster, No. 4075
...89 So.2d 780.' See also Rofer v. Jensen, Fla.App.1962, 141 So.2d 791, 793-794; Sandford v. Firestone Tire and Rubber Co., Fla.App.1962, 139 So.2d 916. Granting the difficulty of the question before the court in the trial below, we do not think that as a matter of law any and all reasonable ......
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Stirling v. Sapp, No. 37573
...may fairly arrive at different conclusions. Rofer v. Jensen, 141 So.2d 791 (Fla.App.2d 1962); Sandford v. Firestone Tire & Rubber Co., 139 So.2d 916 (Fla.App.2d Where the facts are undisputed and the evidence is reasonably susceptible of but a single inference, the question of defendant's n......
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Milby v. Pace Pontiac, Inc., No. 4951
...N.Y.S. 39. It was, therefore, error to dismiss the plaintiff's amended complaint. Sanford v. Firestone Tire and Rubber Co., Fla.App.1962, 139 So.2d 916. In the Hanley case, supra, the plaintiff fell on a step-down which extended 13 1/2 inches beyond a door. The difference in floor levels wa......
-
Curry v. Case, No. 71-512
...Fla.App.1958, 99 So.2d 871; Barr v. Mizrahi, Fla.App.1960, 124 So.2d 508; Sandford v. Firestone Tire & Rubber Company, Fla.App.1962, 139 So.2d 916; Brookbank v. Mathieu, Fla.App.1963, 152 So.2d 526; Miller v. Griffin, Fla.App.1963, 154 So.2d 333; Shaw v. Puleo, Fla.1964, 159 So.2d 641; Beni......
-
Pahucki v. Armster, No. 4075
...89 So.2d 780.' See also Rofer v. Jensen, Fla.App.1962, 141 So.2d 791, 793-794; Sandford v. Firestone Tire and Rubber Co., Fla.App.1962, 139 So.2d 916. Granting the difficulty of the question before the court in the trial below, we do not think that as a matter of law any and all reasonable ......
-
Stirling v. Sapp, No. 37573
...may fairly arrive at different conclusions. Rofer v. Jensen, 141 So.2d 791 (Fla.App.2d 1962); Sandford v. Firestone Tire & Rubber Co., 139 So.2d 916 (Fla.App.2d Where the facts are undisputed and the evidence is reasonably susceptible of but a single inference, the question of defendant's n......