Singleton v. City of Jacksonville, A-161

• Citation: 107 So.2d 47
• Decision Date: 02 December 1958
• Docket Number: No. A-161,A-161
• Parties: Julia SINGLETON, a widow, Appellant, v. CITY OF JACKSONVILLE, Appellee.
• Court: Court of Appeal of Florida (US)

Page 47

107 So.2d 47

Julia SINGLETON, a widow, Appellant, v. CITY OF JACKSONVILLE, Appellee.

No. A-161.

District Court of Appeal of Florida, First District.

Dec. 2, 1958.

Bedell & Bedell, Jacksonville, for appellant.

William M. Madison, Inman P. Crutechfield and Frederick J. Simpson, Jacksonville, for appellee.

WIGGINTON, Judge.

This is an appeal by the plaintiff at trial from final judgment for the defendant consequent upon an order of the trial court granting defendant's motion for directed verdict at the close of plaintiff's evidence. Defendant's motion was grounded on two propositions, viz.: (1) the evidence failed to establish that the defendant had exercised any control in the maintenance of an allegedly defective guardrail or the sidewalk forming part of a street viaduct, or that it was defendant's duty to do so; and, (2) the evidence failed to show that the defendant knew, or in the exercise of reasonable care should have known, of the alleged defect that caused plaintiff's injuries.

In granting defendant's motion the court amounced that it was doing so for the reason that plaintiff had failed to prove a prima facie case of negligence. In the absence of a more specific delineation, we must assume it adopted the reasons advanced by the defendant's motion. Suffice it to say, we are supported in this approach in that both parties have by their respective briefs accepted the grounds set forth in the motion as those relied on by the court by reason of the fact that the argument of each is confined exclusively to those grounds. Therefore, the sole question here is whether the plaintiff's evidence, together with all inferences which might be reasonably drawn therefrom, constitutes sufficient proof, when considered in a light most favorable to the plaintiff, upon which the jury may lawfully have found for the plaintiff. ¹ Examination of the issues made by the pleadings, together with the evidence introduced at trial, is appropriate to a determination of this question.

The suit is for personal injuries sustained by plaintiff as a result of the alleged negligence of the defendant in failing to maintain. a certain sidewalk and guardrail, which formed an integral part of a concrete viaduct on Broad Street in the City of Jacksonville, in a safe and suitable condition for the use of pedestrians. The complaint alleges that during the hours of darkness plaintiff was walking in a northerly direction along the sidewalk on the east side of the viaduct; that she was accompanied by her eight year old grandchild, who was walking between plaintiff and the concrete guardrail that formed the east boundary of the sidewalk and viaduct; that defendant had carelessly and negligently permitted a large opening to exist between the north end of the eastern guardrail and a warehouse situated to the immediate east thereof, which opening was unguarded, unobstructed and unprotected; that while walking along the sidewalk plaintiff's grandchild fell through the opening thus described; and, that in attempting to rescue her, plaintiff likewise fell through the opening to the ground below, a distance of some 14 feet, thus sustaining painful and permanent injuries. Defendant answered with a denial of any negligence on its part and alleged plaintiff's contributory negligence as the sole proximate cause of her injuries. A third defense, by which the legal duty to maintain the subject viaduct was sought to be placed in the State Road Department, was stricken after hearing on plaintiff's motion introduced for that purpose. The properiety of the trial court's ruling in this behalf is not challenged here. We therefore refrain from further comment in that regard and accept the court's ruling as not an issue on this appeal.

Concerning the question of control and the duty to maintain raised by defendant's motion for directed verdict, it is generally held that all streets of a city are presumed, in the absence of evidence to the contrary, to be public streets, and it will be presumed that a sidewalk constructed in a populous part of a municipality was either built by it or it has assumed control thereof. ² We do not understand the rule to be otherwise with regard to viaducts which formed an integral part of such a street. Plaintiff introduced in evidence at trial the charter provision by which the defendant city is empowered to construct and maintain sidewalks and viaducts within its boundaries. Although the record stands mute as to when, by what authority and by whom the subject viaduct was constructed, the city admitted, in answer to certiain interrogatories read in evidence, it was built in 1903. Also that, according to its records, an iron guardrail located along the extreme northern approach was restored by the city's maintenance department on September 10, 1933. An engineer employed in the office of the City Engineer, called by the plaintiff, testified that the city had on at least one occasion repaired portions of the sidewalk along the viaduct. He further testified that had his office been informed of the opening through which appellant fell, it would...