Turlington v. Tampa Electric Co.

• Citation: 56 So. 696,62 Fla. 398
• Parties: TURLINGTON v. TAMPA ELECTRIC CO.
• Decision Date: 21 November 1911
• Court: United States State Supreme Court of Florida

56 So. 696

62 Fla. 398

TURLINGTON v. TAMPA ELECTRIC CO.

Florida Supreme Court, Division A.

November 21, 1911

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by Henrietta R. Turlington against the Tampa Electric Company. Judgment for defendant, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where by virtue of the relation towards each other existing between parties, the law implies a duty from one to the other, a breach of that duty by one that proximately causes or contributes to causing a substantial injury to the other may constitute a cause of action for compensatory damages, if the plaintiff is free from fault.

Where one undertakes to render a service by furnishing accommodations of a public nature, the law imposes a duty to use proper care, precaution, and diligence in providing and maintaining the accommodations in a reasonably safe condition for the purposes to which they are adapted and are apparently designed to be used.

If accommodations afforded to the public for hire are not reasonably suitable and safe for the purposes for which they may ordinarily and apparently be used in a customary way, the public should be excluded from their use, or appropriate notice of their unsuitable or unsafe condition should be so given as to warn persons of dangers in using them.

A failure to perform a duty due to the public in furnishing public accommodations may be negligence that, if it proximately results in injury to another without his fault will constitute a cause of action for compensatory damages.

Where the relation of keeper of a body of water and a springboard over it for the use of the public as a diving and swimming place and of a patron for hire of such place exists between two parties, it is the duty of such keeper to exercise proper care, precaution, and diligence to provide and maintain a reasonably suitable and safe springboard, and water of reasonably suitable and safe depth under and about the springboard, free from obstructions or other dangers to comfort and safety in the ordinary and customary use of such diving and swimming place, and, if the place is not reasonably safe, the public should be excluded from its use or appropriately warned of its dangers, otherwise the keeper may be negligent for which an action lies by one proximately injured by the negligence.

Allegations that, owing to the fact that the water under a springboard kept and used for hire as a public diving place was about 2 1/2 feet to 3 1/2 feet deep, it in fact constituted a dangerous place to those resorting there for bathing and diving, that the defendant negligently suffered the same to be and remain in the dangerous condition, and that by means whereof the plaintiff's decedent without his fault was injured, state a cause of action.

Where the negligence of the keeper for hire of a public diving and bathing place that proximately causes injury to another as alleged is not proven by the plaintiff, or if it appears that the injured person was guilty of contributory negligence damages cannot be recovered for the injury.

COUNSEL McMullen & McMullen, for plaintiff in error.

P. O Knight, for defendant in error.

OPINION

WHITFIELD C.J.

The plaintiff in error brought this action; the first count of the declaration being as follows:

'Henrietta R. Turlington, the plaintiff aforesaid, by her attorneys, McMullen & McMullen, sues the Tampa Electric Company, defendant aforesaid, for that whereas the defendant in the lifetime of one Henry E. Turlington, now deceased, to wit, on or about the 4th day of July, A. D. 1910, was possessed of, using, and operating a certain street railroad in and about the city of Tampa, in the county of Hillsborough, and state of Florida, with a line or branch of said street railroad extending to Ballast Point, a distance of about six miles from the said city of Tampa, over which it, the said defendant, runs its cars, and was then possessed of and maintained a park at said Ballast Point in the said county of Hillsborough and state of Florida, as a place of attraction for its passengers, which was open to the public and lay between its line of railroad and Hillsborough Bay; that there was then in said park a pavillion, which the defendant also possessed and maintained, which was also open to the public and at which dances and entertainments were occasionally held, and where drinks of various kinds were sold by said defendant, and that on account of said park and pavillion large numbers of people were constantly visiting said park and pavillion and passing over the railroad of the defendant; that said pavillion extended on the east or southeast side down to the waters of Hillsborough Bay, and that there was built out from said pavillion, over the waters of Hillsborough Bay, a bathhouse which was practically a continuation of said pavillion, and which the defendant also possessed and maintained, which was open to the public for bathing and diving, and which was held out to the public as a suitable place for bathing, swimming, and diving, and where bathing suits were rented by the defendant to the public; that extending out from said bathhouse in an easterly or southeasterly direction and constituting a part of said bathhouse was a springboard for diving about 10 feet in length, which springboard was about 3 or 4 feet above the waters of Hillsborough Bay at the time of an average mean tide; that the depth of the water underneath said springboard was at the time of an average or mean tide, about 2 1/2 feet to 3 1/2 feet; that owing to the fact that the water was so shallow underneath said springboard, and where the public were so invited for a consideration to bathe and dive into the waters of Hillsborough Bay, it in fact constituted a dangerous place to those who resorted there for bathing and diving; that on the 4th day of July, A. D. 1910, the said Henry E. Turlington rode to said Ballast Point on the cars of the defendant, and, entering said pavillion, there procured a bathing suit for a consideration from the defendant, and, having so procured said bathing suit, was then entitled to the privileges of said bathhouse and springboard; that after having put on said bathing suit in said bathhouse the said Henry E. Turlington, while in the exercise of due care and prudence, dived headfirst off said springboard into the waters of Hillsborough Bay, and striking his head upon the bottom of said bay, the depth of the water at said time underneath said springboard being only about 3 feet or 3 1/2 feet, broke his neck, after which he languished, suffering untold agony until the 31st day of October, A. D. 1910, upon which date he died as a result of said injury; that there was no sign at or near said springboard indicating the depth of the water, and said Henry E. Turlington had no knowledge of the depth thereof, and no sign warning the public of the danger of diving from said springboard; that the defendant, not regarding its duty in that behalf while it possessed and maintained the said pavillion and bathhouse, wrongfully and negligently suffered the same to be and remain in the dangerous condition aforesaid, by means whereof the said Henry E. Turlington sustained the injury aforesaid, from which he died; that the plaintiff was then the wife of the said Henry E. Turlington, and is now his widow.

'Wherefore the plaintiff brings this action and claims damages in the sum of $50,000.'

The second count alleges that drinks were sold and bathing suits were rented to the public, and to the decedent, by Addison A. Hackney, a lessee of the defendant; and the third count alleges that the bathing suits were rented to the public and to the decedent by the defendant and Addison A. Hackney. In other respects the second and third counts are similar to the first.

A demurrer addressed separately to each count of the declaration was filed; that to the first count being as follows:

'(1) Because the plaintiff has failed in and by said first count to make or state any cause of action...