Kitchen v. City of Jacksonville

29 So. 2d 441, 158 Fla. 621, 1947 Fla. LEXIS 591

Opinion

SANDLER, Associate Justice:

This is an appeal from a judgment for the defendant, City of Jacksonville, which involves the liability of a municipality for damages for personal injury sustained by a pedestrian stepping into a depression situated in a park or parkway. The declaration charges the hole or depression, which is claimed caused plaintiff’s injuries, to be located in a street in the city of Jacksonville known as River Road. The uncontradicted testimony of the plaintiff in support of the declaration, which was all the testimony submitted at the trial, places the hole or depression in a grass plot in the park or parkway which lies between the concrete bulkhead, along the easterly side of the river and the westerly concrete curbing of River Road. The park or parkway is not part of the street itself. A municipality is not liable to a pedestrian injured by stepping into a depression or excavation situated, not in a street or sidewalk, but in a public parkway. See City of Miami Beach v. Quinn, 5 So. (2nd) 593, 149 Fla. 326.

The remaining question of the variance between the declaration and proof becomes immaterial in view of the above rule.

Affirmed.

THOMAS, C.J., BUFORD and ADAMS, JJ., concur.