GERTRUDE JACOBS AND CHARLES JACOBS, HER HUSBAND, APPELLANTS,
v.
LILLIAN C. CLAUGHTON, AS EXECUTRIX OF THE ESTATE OF EDWARD CLAUGHTON, APPELLEE
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The court held that summary judgment for the defendant was proper because there was no genuine issue of material fact regarding negligence or contributory negligence.
Plaintiffs sued a property owner for injuries sustained when the plaintiff-wife fell over a telephone pole on the sidewalk. The parties agreed the obs…
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PEARSON, Judge.
This is an appeal from a summary final judgment entered upon the basis of the pleadings, the plaintiffs’ depositions, and the photographs identified at a pre-trial conference. The only error assigned is that, “the court erred in entering judgment for the defendant”. The judgment is affirmed. The complaint is by an injured wife and her husband for her injury. It is alleged that the defendant, a property owner, was negligent for either having placed or allowed to be placed a telephone pole across the sidewalk in front of defendant's property.
A review of the record reveals that there was no factual issue. Both the plaintiffs and the defendant agreed that the plaintiff-wife fell over the obstruction in broad daylight. The plaintiffs stated upon deposition that they could give no reason why the obstruction was not seen. Photographs introduced by stipulation showed an unobstructed view of at least one-fourth of a city block. The plaintiffs admitted at pretrial that they had nothing other than supposition upon which to prove any negligence of the property owner. Upon these facts it was not error to grant defendant’s motion for summary judgment. It would have been vain to have-proceeded with a trial without proof of negligence and where contributory negligence of the injured plaintiff conclusively appeared. A person is bound to use some care for his own safety even upon such a normally safe walking area as a city sidewalk. See Breau v. Whitmore, Fla.1952, 59 So. 2d 748, and Key West Electric Co. v. Albury, 91 Fla. 695, 109 So. 223.
Affirmed.
CARROLL, CHAS., C. J., and HORTON, J., concur.
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Bashaw v. Dyke, 122 So. 2d 507 (Fla. 1st DCA 1960)…OLD L., Associate Judge, concurs. WIGGINTON, C. J., concurs in part and dissents in part. . Commercial Credit Corp. v. Yarn, Fla. App.1959, 108 So. 2d 638. City of Miami v. Eichardt, Fla.App.1959, 115 So. 2d 453. Jacobs v. Claughton, Fla.App.1957, 97 So. 2d 53. Pettigrew v. Nite-Cap, Inc., Fla.1953, 63 So. 2d 492. Earley v. Morrison Cafeteria Co. of Orlando, Fla.1952, 61 So. 2d 477.…
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Minerva Goldstein and her husband v. Great Atl. & Pac. TEA Co., 142 So. 2d 115 (Fla. 3d DCA 1962)…at the broken car stop in the instant case cannot be said to be as obvious as the grating covering a drain in Becksted v. Riverside Bank of Miami, Fla.1956, 85 So. 2d 130; or the telephone pole across a sidewalk in Jacobs v. Claughton, Fla.App.1957, 97 So. 2d 53. Both appellants and appellees have cited numerous instances as supporting their respective positions in which the obviousness of obstructions or defects was in issue. Very little can be gained from such comparisons because of the numerous evidentia…
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Polakow v. Bone & Schultz Corp., 156 So. 2d 421 (Fla. 3d DCA 1963)…PER CURIAM. Affirmed upon the authority of Breau v. Whitmore, Fla.1952, 59 So. 2d 748; Jacobs v. Claughton, Fla.App. 1957, 97 So. 2d 53.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Key W. Elec. Co. v. Albury, 91 Fla. 695 (Fla. 1926)
- Breau v. Whitmore, 59 So. 2d 748 (Fla. 1952)