IDALIA PIVIDAL, APPELLANT,
v.
CITY OF MIAMI, FLORIDA, A MUNICIPAL CORPORATION, AND MIAMI TRANSIT CO., A FLORIDA CORPORATION, APPELLEES
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Summary judgment for defendants is reversed because the photographs alone do not conclusively show contributory negligence as a matter of law.
Plaintiff sued the City of Miami and Miami Transit Co. for injuries sustained when alighting from a bus due to alleged street and bus stop negligence.…
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The plaintiff prosecutes this appeal from .a summary final judgment for the defend.ants. The appellant filed her complaint for ■ damages upon injuries allegedly caused by: (1) the negligence of the defendant, ■ City of Miami, in failing to properly main- • tain a portion of the city street where plain-tiff fell, upon alighting from a bus, and (2) the negligence of the defendant, Miami "Transit Co., in failing to stop its bus at a •safe place for her to alight from the bus. 'The respective defendants filed their answers which denied the allegations of the ■ complaint and affirmatively alleged that the ..accident was caused by the contributory -negligence of the appellant. At the pre- - trial conference, the court entered the summary final judgment for both defendants. The minutes of the pre-trial conference ■ contain the following announcement by the • .court:
“I am frank to say that I do not see liability in the case. The photographs, themselves, reflect the condition which, to my mind, is not a dangerous condi- ■ tion.
“It is one that obviously exists, if this -is a dangerous place, for a bus to stop, there are literally thousands of such places in this City that I see every day.
“Now, furthermore it seems to me that a passenger alighting from the bus, in broad daylight, at this point, in the exercise of any degree of care whatever for his or her own safety, would not be endangered by this condition.”
The photographs submitted showed that the edge of the paved roadway, where the passenger disembarked, was uneven and there was a slight drop off at the road’s edge. The part immediately adjacent to the edge was a hard sandy covered surface with numerous small stones on the top of the sand. Counsel for the plaintiff introduced the photographs and both counsel for the city and bus company agreed the photographs reflected the conditions existing at. the time of the accident and agreed to their introduction in evidence at the trial.
The Florida Supreme Court has held that a bus company owes the same high degree of care to passengers when entering or leaving the vehicle as when being transported therein. Atlantic Greyhound Lines v. Lovett, 134 Fla. 505, 184 So. 133, 136.
Thus it was stated in Tampa Electric Co. v. Fleischaker, 152 Fla. 701, 12 So.2d 901, 905, quoting 3 Sherman and Red-field, Negligence, 1319-1321 (rev. ed.), “The obligation of a carrier to assist passengers in getting on and off depends largely upon the nature of his vehicle, the facility with which access may be had without assistance, and similar circumstances.
“The duty to assist, or warn, or guide and protect, not in itself a direct duty, may arise from the unusual conditions created by the place of stoppage, which place is not in itself the violation of a direct duty.” See also annotation on “Liability of motorbus carrier to passenger injured through fall while alighting from vehicle”, 9 A.L.R.2d 938, 946.
Of course, “[a] corollary of the rule that carriers are held to the highest degree *504of care for the safety of passengers is that ‘ “passengers should use ordinary care to protect themselves in getting on or off trains, when safe and suitable means of boarding or alighting from trains are provided.” ’ ” Jacksonville Coach Co. v. Early, Fla.1955, 78 So.2d 369, 371.
As to the liability of a municipality for defects in its streets the general rule prevailing in Florida is “while a city is not an insurer of the motorist or the pedestrian who travels its streets and sidewalks, City of St. Petersburg v. Roach, 148 Fla. 316, 4 So.2d 367, it is responsible, of course, for damages resulting from defects which have been in existence so long that they could have been discovered by the exercise of reasonable care, and repaired.’ City of Jacksonville v. Foster, Fla.1949, 41 So.2d 548, 549; Mullis v. City of Miami, Fla.1952, 60 So.2d 174, 176.
The controlling question, therefore, is do the admissions made at the pre-trial conference and the photographs admitted, so conclusively show contributory negligence as a matter of law that there is no need for a trial? Inasmuch as a summary final judgment for the defendant in a negligence action is in essence a directed verdict for the defendant before trial, we must view the facts in the light most favorable to the plaintiff and grant to the plaintiff all reasonable inferences from the facts before the court.
A careful review of the record reveals no material admission, other than the photographs, upon which a finding of contributory negligence as a matter of law could be made. Photographs may be used as a basis for a summary judgment but if reasonable men might justifiably make different inferences and deductions and reach different conclusions from certain photographs, then it is the province of the jury to make such deductions and inferences. Bess v. 17545 Collins Avenue Inc., Fla.1957, 98 So.2d 490. In the case now before us the depth and extent of the alleged defect in the roadway is difficult to determine from the photographs in evidence. Based upon the reasoning set forth in the last cited case the summary judgment must be reversed.
Reversed and remanded.
CARROLL, CHAS., C. J., and HORTON, J., concur.
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In re Standard Jury Instructions IN Civil Cases-Report NO. 09-01 (Reorganization of the Civil Jury Instructions). In re Standard Jury Instructions in Civil Cases-Report No. 09-02 (Greater Weight of the Evidence, 35 So. 3d 666 (Fla. 2010)…N USE FOR 401.15 1. Atlantic Greyhound Lines v. Lovett, 134 Fla. 505, 184 So. 133 (Fla.1938); Florida Southern Railway Co. v. Hirst, 30 Fla. 1, 11 So. 506 (Fla.1892); Henderson v. Tarver, 123 So. 2d 369 (Fla. 2d DCA 1960); Pividal v. City of Miami, 105 So. 2d 502 (Fla. 3d DCA 1958). 2. Instruction 401.15 should be followed by instruction 401.17, Burden of Proof on Preliminary Issues. 401.16 PRELIMINARY ISSUES— PREMISES LIABILITY On (claimant’s) claim, there is a preliminary issue for you to decide. That i…
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Berona Leon v. City OF Miami, 312 So. 2d 518 (Fla. 3d DCA 1975)…e men might make justifiably different inferences and deductions and reach different conclusions from certain photographs, then it is the province of the jury to make such deductions and inferences. See Pividal v. [*520] City of Miami, Fla.App.1958, 105 So. 2d 502. The mere fact that Mrs. Leon did not see the hole in the sidewalk prior to her fall, does not in itself absolve the City of Miami from negligence. It is well established that the issue of plaintiff’s own negligence is ordinarily for the jury. Suhr…
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Nat Reiss v. 1550 Collins Corp., 161 So. 2d 572 (Fla. 3d DCA 1964)…we must point out that summary judgments based upon the trial judge’s evaluation of photographs are precariously close to the weighing of evidence. Bess v. 17545 Collins Avenue, Inc., Fla.1957, 98 So. 2d 490; Pividal v. City of Miami, Fla. App.1958, 105 So. 2d 502. In the present instance if the pictures are viewed with all inferences against the moving party, we must hold that they do not preclude an issue on negligence. The second possible ground for the summary judgment would be that the plaintiff was con…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bess v. 17545 Collins Ave., Inc., 98 So. 2d 490 (Fla. 1957)
- Mullis v. City of Miami, 60 So.2d 174 (Fla. 1952)
- Atlantic Greyhound Lines v. Mrs. Susie B. Lovett, 134 Fla. 505 (Fla. 1938)
- City of St. Petersburg v. Roach, 4 So. 2d 367 (Fla. 1941)
- City of Jacksonville v. Foster, 41 So.2d 548 (Fla. 1949)
- Jacksonville Coach Co. v. Early, 78 So. 2d 369 (Fla. 1955)
- Tampa Elec. Co. v. Lottie Fleischaker, 152 Fla. 701 (Fla. 1943)