Nicholson v. City of St. Petersburg

163 So. 2d 775, 1964 Fla. App. LEXIS 4224
CourtDistrict Court of Appeal of Florida
DecidedMay 8, 1964
DocketNo. 4209
StatusPublished
Cited by5 cases

This text of 163 So. 2d 775 (Nicholson v. City of St. Petersburg) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nicholson v. City of St. Petersburg, 163 So. 2d 775, 1964 Fla. App. LEXIS 4224 (Fla. Ct. App. 1964).

Opinion

SHANNON, Judge.

The plaintiff-appellant received injuries in a bus operated by the defendant-appellee and filed this suit for damages arising out of said injuries. At the conclusion of her evidence the lower court directed a verdict against the plaintiff, and this appeal ensued.

Plaintiff boarded a bus in St. Petersburg at the Webb’s City bus stop, which is located on the west side of 9th Street South, just north of the intersection of that street with 2nd Avenue South. This intersection was controlled by a traffic control signal light. According to the evidence, plaintiff boarded the bus carrying her purse and umbrella, and the bus was empty except for the driver and one other passenger. This passenger was an acquaintance of the plaintiff, and after plaintiff greeted her and paid her fare she started toward a seat across the aisle from her friend. Before she was able to reach it, however, the driver put the bus in motion, then almost immediately braked it as the traffic light changed. As the bus stopped the plaintiff fell backward toward the front of the bus, and was injured. She was 82 years of age and weighed about 170 pounds, but gave no indication of being physically disabled.

The plaintiff filed her complaint, which the defendant attacked in a motion to dismiss. This motion alleged, inter alia, that the plaintiff had failed to give proper notice to the defendant municipality as required by Chapter 18896, Laws of Florida, Special Acts 1937. This motion was denied, but at the conclusion of plaintiff’s testimony the court directed a verdict for the defendant on the merits. She has submitted but one point in her appeal, which she phrases as follows: Did the plaintiff prove a prima facie case? The defendant divided the plaintiff’s question into two subquestions as follows: (a) Was there sufficient proof of a jerk or jolt of unusual nature? And (b) Did the defendant-appellee have a duty to keep its bus stationary until the plaintiff was seated? In addition to the question posed by the appellant, the appellee poses two further questions, one of which is: Does a notice statute providing for a required notice for personal injuries require that notice be given if a suit is brought for personal injuries based on violation of a contractual obligation? We shall discuss these questions in the order in which they have been set out.

In the first question posed it is important to notice that the plaintiff had already entered the bus and paid her fare. There is no showing in the record that she was infirm or in need of assistance. The testimony showed that she was very active and that she had used the buses, including the [777]*777one on which she was injured, many times in the past. There is no question of the bus driver’s duty to help her on the bus or aid her in any way in getting into it, as she neither needed nor requested help. In the transcript concerning the movements of the bus she testified, in part: v

“Q Was the way the bus was operated on that day any different from the usual way.
“A I don’t know.
“Q You don’t know?
“A I don’t know.
“Q Mrs. Nicholson, do you remember the date you were called to the First Federal Building for the purpose of a discovery deposition ?
* * * * * *
“THE WITNESS: Yes.
“Q Remember some of the questions thet were — occurred on that date?
“A Yes, sir.
“Q Do you remember these questions and these answers — ■
******
"Q (Reading) ‘Q Well, was the way the bus started in this case any different from the way it was when it usually started ? A Well, it was different to me, sir.’ Do you recall those statements being made?
“A Yes, sir, I do.
“Q Well, yes, but did the bus start more abruptly than it usually starts ?
******
“Q Your answer today would be the same as it was then ?
“A Um-hum, I can’t tell you.
“Q (Reading) ‘Q You don’t know whether it started or not? A Yes, it started.’
“A Sure, it started.
“Q Your answer would still be the same?
“A Yes, sir.
* * * % * *
“Q And did you answer, ‘Sure. Sure.’?
“A Um-hum. Yes, I did.
“Q Then, your testimony today wouldn’t be any different than it was then?
“A No, sir.
“Q This is the usual type of start this bus made?
“A Yes, sir.”

These parts of the plaintiff’s testimony are particularly relevant in light of the law which must be applied herein, as will be shown below.

The plaintiff-appellant cites several cases upon which she bases her argument that the court erred in directing a verdict against her. These cases are Jacksonville Coach Company v. Rivers, Fla.1962, 144 So.2d 308; Blackman v. Miami Transit Company, Fla. App.1960, 125 So.2d 128; and Kantor v. City of Coral Gables, 1944, 154 Fla. 523, 18 So.2d 477, together with several other cases setting out the law with reference to directed verdicts: Harper v. Mangel, Fla.App.1963, 151 So.2d 346; and Farber v. Houston Corporation, Fla.App.1963, 150 So.2d 732.

For the purpose of clarifying the law as it now exists on this particular question, it is necessary for us to examine some of these cases. In the process of such examination, it must be kept in mind that the plaintiff has, by her own testimony, established that the bus was being operated at the time of the mishap in “its usual manner.” There are a number of cases where the passenger has been injured by a sudden or violent movement which could not be normally expected. In Blackman v. Miami [778]*778Transit Company, supra, the plaintiff, an eight year old minor, was sitting in a bus when “[t]he bus made a sudden or ‘quick’ stop. The boy fell over or was thrown forward (to his right) and struck his head against a metal bar. The only evidence of the speed of the bus was testimony by the boy and his mother that the bus was going ‘fast’, and the only evidence of a sudden stop was the mother’s testimony that it stopped ‘quickly.’ ” Sustaining the directed verdict for the defendant, the court said, in part:

“Ruling out stops of extraordinary violence, not incidental to ordinary travel, as inapplicable to the stop which occurred here, the sudden stopping of the bus was not a basis for a finding that the bus was negligently operated, in the absence of other evidence, relating to the stop, of some act of commission or omission by the driver which together with the ‘sudden’ stop would suffice to show a violation of the carrier’s duty. This is so because a sudden or abrupt stop, which could be the result of negligent operation, could as well result from conditions and circumstances making it entirely proper and free of any negligence.”

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Bluebook (online)
163 So. 2d 775, 1964 Fla. App. LEXIS 4224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nicholson-v-city-of-st-petersburg-fladistctapp-1964.