Smith v. Hinkley
| Decision Date | 10 July 1929 |
| Citation | 98 Fla. 132,123 So. 564 |
| Parties | SMITH v. HINKLEY et al. |
| Court | Florida Supreme Court |
Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.
Consolidated actions by Elizabeth E. Hinkley and her husband, W. W Hinkley, and by the latter alone, against Frederick H. Smith doing business under the firm name of Smith Electric Company. Judgment for plaintiffs, and defendant brings error.
Affirmed.
Syllabus by the Court
Contractor whose employees used awning as scaffold while attaching electric sign, held guilty of negligence rendering him liable for injuries to pedestrian on whom awning fell. Contractor, whose employees used awning over sidewalk as scaffold while attaching electric sign to front of building above it, held guilty of negligence, rendering him liable for injuries to pedestrian on whom awning fell, in failing to make it safe for such use with implied knowledge of its unsuitableness therefor.
Person in such position that every thinking person of ordinary sense would recognize danger of injury to another's person or property, if he failed to use ordinary care and skill, owes duty to use such care and skill to avoid danger. When a person is placed by circumstances in such position with regard to another that every thinking person of ordinary sense would at once recognize danger of injury to latter's person or property, if he failed to use ordinary care and skill, a duty arises to use such care and skill to avoid danger.
Nurse's testimony from record made by her as to what she did for patient held admissible. In personal injury suit, testimony of nurse at hospital, to which plaintiff was carried for treatment, from record of case made by her at time, as to what she did for patient, held admissible, as against objection that record itself was best evidence.
Witness without independent recollection of facts, which he states he reduced to writing when he had perfect recollection thereof, may refer thereto to assist memory. Where a witness has no independent recollection of facts, but states that he reduced them to writing at a time when he had a perfect recollection thereof, he may refer to such writing to assist his memory.
Counsel's improper remarks held not preserved for review by statement after argument that counsel desired exceptions noted, where record showed no objections when remarks were made. Objection to improper remarks of plaintiff's counsel held not properly preserved for review by statement of defendant's counsel after argument that he desired to have exceptions noted, where record showed no objections when remarks were made; only court's ruling on objections thereto being reviewable.
Statements of fact in motion are not evidence of facts related. Statements of fact in a motion are not evidence of the facts related therein.
Jos. S. White, of West Palm Beach, for plaintiff in error.
McCoy & Finch, of Lake Worth, for defendants in error.
At 814 Lake avenue in Lake Worth, Fla., there was a building occupied for business purposes by persons engaged as real estate brokers. One of the agencies was known as the Lackawanna Syndicate operated by two men named Bryant and another named Wepf. The building was about 20 feet wide and fronted south on Lake avenue. There was an awning in front of the building to which it was attached, extending partly over the sidewalk for the entire width of the building. The frame work of the awning consisted of galvanized pipes about an inch in diameter fastened together in the form of a triangle, the base attached to the front of the building by means of metal plates into which the ends of the pipes at the base of the triangle were screwed, and the plates were fastened to wooden strips in size about 1"'×4"', which strips were in turn fastened to the building. Upon the frame of the awning were placed corrugated galvanized iron sheets which served as the roof of the awning. There were no supports underneath the framework of the awning.
The Lackawanna Syndicate desired to attach an electric sign to the front of the building above the awning. The sign was of metal framework and was about 3 feet long doctors, nurses, hospital fees, hotel bills, and engaged in business under the name of Smith Electric Company, was employed by the Lackawanna Syndicate to put the sign in place. His employees, who were engaged in doing the work, used the awning as a scaffold or place on which to stand while putting the sign in place. As they were executing the work under these conditions, the awning tore loose from its fastenings on the west side and fell to the sidewalk. Mrs. Elizabeth E. Hinkley, a pedestrian on the sidewalk at the time the awning fell, was struck by it and severely injured.
The accident occurred in February, 1926, and the following May, W. W. Hinkley brought an action against Smith for damages resulting from the injuries to his wife. He claimed $5,000 damages on account of money he was required to spend for the services of doctors, nureses, hospital fees, hotel bills, and because of the deprivation of his wife's society and companionship for a period of about 10 weeks.
At the same time Mrs. Elizabeth Hinkley and her husband brought an action against Smith for damages on account of the injuries she received, and claimed $10,000 damages.
There were four counts in each declaration. The two causes were consolidated under an order of the court upon motion of defendant's counsel. Demurrers to the first, third, and fourth counts of the declarations were sustained. Thereupon amended declarations were filed each embracing three counts. Both declarations were framed in the same terms. Pleas of not guilty were interposed to the second and third counts of the amended declarations, and demurrers to the first and fourth counts were interposed. No order seems to have been entered upon this demurrer. The amended declarations contained no fourth count, and plaintiffs' counsel seem to have abandoned the first count as they joined issue upon the pleas to the second and third counts and proceeded to trial. Verdicts for the plaintiff in each case were rendered. In the W. W. Hinkley case the verdict was for $2,113.25, and in the Elizabeth Hinkley case it was for the sum of $2,000. A motion for a new trial was overruled, and judgment was entered in each case.
The second and third counts of the two amended declarations are framed in similar terms. No difference exists between the counts of the same number in the two declarations in point of substance.
The two actions rest upon the alleged engligent act of the employees of Smith in using the awning as a scaffold or place upon which to stand while putting the electric sign in place. Count 2 alleged that they knew that it was insecure and unsafe and being over a sidewalk where people were passing would injure some one or more of them if it should fall. The third count alleged that the employees of Smith knew or had reasonable cause to believe that the awning was unsafe for the purpose for which they used it, and that it constituted a menace or danger to pedestrians using the sidewalk.
In drafting the second and third counts of each declaration the pleader made a part of the first count parts of them. Such...
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