Swindal v. City of Jacksonville

• Citation: 161 So. 383,119 Fla. 338
• Parties: SWINDAL et al. v. CITY OF JACKSONVILLE.
• Decision Date: 15 May 1935
• Court: United States State Supreme Court of Florida

161 So. 383

119 Fla. 338

SWINDAL et al. v. CITY OF JACKSONVILLE.

Florida Supreme Court

May 15, 1935

En Banc.

Error to Circuit Court, Duval County; DeWitt T. Gray, Judge.

Action by Clara Francis Swindal, joined by her next friend, C. H Swindal, against City of Jacksonville. Judgment for defendant on demurrer to plaintiff's declaration, and plaintiffs bring error.

Reversed and remanded, with directions.

BROWN J., dissenting.

COUNSEL

Frank F. L'Engle and Claude L'Engle, both of Jacksonville, for plaintiffs in error.

Austin Miller and Emmet Safay, both of Jacksonville, for defendant in error.

OPINION

PER CURIAM.

The declaration in this case, which was adjudged bad on demurrer counts in substance on an allegation by plaintiff below that the defendant city of Jacksonville while engaged in the quenching, controlling, smothering, and fighting of a fire in the city, created a dangerous nuisance in the city streets by leaving unguarded a certain fire hydrant and high-pressure hose connected therewith, which being left in that condition endangered the lives and safety of pedestrians on the city sidewalks, in consequence of which plaintiff while lawfully walking along a sidewalk of the city where she had a lawful right to be, was unlawfully, knowingly, negligently, and carelessly injured without fault or negligence on her part by a stream of water issuing without warning and at great pressure, upon and against plaintiff with great force, velocity, and violence without any notice to plaintiff of the danger thereof and without her being otherwise advised or knowing of same prior to the infliction of her injuries.

Plaintiff further averred that the dangerous practice and condition constituting the unlawful unisance complained of was of long standing and well known to the city, which had taken no steps whatever to guard against, abate, or protect pedestrians on the city's streets from the great danger of same, and that in consequence of the city's breach of duty in the particular case now before this court, that plaintiff having no knowledge of and not suspecting any danger to her from using the sidewalk whereon she was at the time walking, was struck by a stream of water issuing from the city's fire hydrant and hose with such velocity, force, and violence that she was violently thrown from her feet, down, over, and upon the sidewalk and/or highway of said city, and same then and there violently and greatly bruising, wounding, and injuring plaintiff through her body, and the right and left ankle right and left knee, right hip, and left fibula joint of plaintiff were then and there strained, stretched, pulled, bruised, and separated, and each of said ankle, knee, and left fibula joint of plaintiff was made weak, sore, lame, irritated, and inflamed, and that as a result of the injury to the right hip and left fibula joint of plaintiff she has lost the natural use and function of same and does suffer great and continuous pain therefrom, and that plaintiff will continue so to suffer great body and mental pain and suffering, and to be deprived of the natural use and function of the right hip and let fibula joint of plaintiff, to wit, permanently. That by reason thereof...