Jacobs v. Claughton

97 So. 2d 53

• Court: District Court of Appeal of Florida
• Decided: September 24, 1957
• Docket: No. 57-45
• Status: Published

Opinion

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.