Marian Stokes, a 12 year old girl, fell as a result of a hole in the sidewalk of a Jacksonville street. She sued the city alleging negligence. At the conclusion of the plaintiff's case the city moved for a directed verdict on the ground that the little girl was guilty of contributory negligence as a matter of law. The motion was denied. The issue of contributory negligence was submitted to the jury which returned a verdict for the plaintiff in the amount of $1,000.
The sole question on appeal is whether there was contributory negligence as a matter of law. The city concedes that it was negligent in permitting the sidewalk hole to stay unrepaired.
There was not a particle of evidence on the plaintiff's side that the girl knew of the hole; on the contrary, the testimony is repetitious and emphatic that she did not. Even an adult is not careless in failing to avoid harm unless he is actually warned or the circumstances warn him. The mere fact that a hole is big enough to see does not settle the question whether one should have avoided stepping into it. If visibility alone settled contributory negligence every case of slipping on a floor or of encountering any stationary object would automatically be a case of non-liability for in all these cases the condition which caused the harm was visible. The question always is whether the plaintiff used due care for his own safety, taking into account all the circumstances, of which the visibility of the object encountered is an important one, but still only one of the circumstances.
It takes more indication of danger to alert a child than to alert an adult. "Children are necessarily lacking in the knowledge of physical causes and effects which is usually acquired only through experience. They must be expected to act upon childish instincts and impulses, and must be presumed to have less ability to take care of themselves than adults have." Bagdad Land & Lumber Co. v. Boyette, 104 Fla. 699, 140 So. 798, 800. As applied to the class of action here involved, the general statement in 63 C.J.S., Municipal Corporations, § 849, p. 195, suffices:
Even if the plaintiff here were an adult, the issue of contributory negligence was for the jury, but the question of the child's prudence and judgment is itself a question of fact. 38 American Jurisprudence 887.
The city's counsel have cited no case and we are aware of none in which the contributory negligence of a child has been decided as a question of law.
In whatever situation the law finds children, it usually deals with them differently than it does with adults.
THOMAS, HOBSON and DREW, JJ., concur.
ROBERTS, C.J., and TERRELL and MATHEWS, JJ., dissent.
MATHEWS, Justice (dissenting).
This is an appeal from a final judgment entered pursuant to a verdict by a jury. A pedestrian was hurt by reason of a fall on a sidewalk immediately in front of her home on Silver Street in the City of Jacksonville. The sole question presented is whether or not she was guilty of such contributory negligence as to bar recovery.
For some reason there is no assignment of error with reference to negligence of the city and the burden of proof on the part of the plaintiff concerning such negligence. The case was apparently tried on the assumption that the city was negligent but that the city claimed that the pedestrian was guilty of such contributory negligence as to bar recovery.
The undisputed facts are: the injured person was a girl between twelve and thirteen years of age; she lived with her sister in a home on Silver Street in Jacksonville, Florida; Silver Street is in Springfield, the oldest part of the City of Jacksonville; the sidewalk was an old one and was constructed of brick and was immediately in front of the home of the pedestrian; the bricks were uneven and the sidewalk was very bad and rough because of the unevenness of the bricks; it was only a few feet from the steps of the home to the sidewalk. The minor and her sister with whom she lived used this sidewalk daily; a large tree was growing close to the edge of the sidewalk and a root from such tree had displaced a brick and there was a hole partly filled with dirt and the root from the tree
At the conclusion of the plaintiff's case, the city moved the Court for a directed verdict as follows:
The motion for new trial, which was denied, contained the following grounds:
We have referred to the testimony put on by the plaintiff. There is no conflict in such testimony. There is no dispute as to any material fact. In this case the defect in the sidewalk was not concealed but it was open, obvious and had been seen and observed by everyone who testified in the case except the plaintiff, and she used the sidewalk as much, if not more, than anyone else. She knew that the sidewalk was made of brick; she knew the tree was there; she knew the sidewalk was, like the "Appian Way", old, worn, in a very bad condition and uneven. She passed by this hole several times a day. If she didn't know it was there, it was her duty to know it. She was in a better position to know of the existence of the hole than agents or inspectors for the city. When the uncontradicted testimony of the plaintiff shows that the negligence of the plaintiff proximately contributed to the accident which caused the injuries, the defendant may take advantage of such a situation and move for a directed verdict, as was done in this case. The contributory negligence of the plaintiff as disclosed by the evidence was a complete bar to her recovery. Matson v. Tip
It is quite true that contributory negligence is a question of fact on which the city may have the burden of proof. This statement, however, must be limited. If the uncontradicted testimony of the plaintiff shows the contributory negligence, then there is no liability and it is not necessary for the city to put on any proof of such negligence. It is a question of fact to be determined by a jury only when there is a genuine dispute about material facts. If there is no dispute then the question of contributory negligence becomes a question of law and not of fact.
In the case of Faulk v. Parrish, Fla., 58 So.2d 523, we attempted to eliminate the confusion with reference to this matter and some of the inconsistent statements which had so frequently appeared in many opinions. In that case we held that where the evidence offered at the time of the trial by the plaintiff is uncontradicted and shows that the contributory negligence of the plaintiff proximately caused the accident and injuries, only a question of law is presented and there is no question of fact to be submitted to the jury. There is no necessity for the defendant to offer proof of contributory negligence when the uncontradicted testimony of the plaintiff shows that there was such contributory negligence. The defendant may take advantage of the situation when the uncontradicted testimony of the plaintiff shows contributory negligence by a motion for a directed verdict.
In the case of Matson v. Tip Top Grocery Co., Inc., supra, we held the danger was not hidden and that the plaintiff owed to herself the duty to observe the obvious and apparent condition of the premises. In the case of Miller v. Shull, supra, the same doctrine was applied.
In the case of Earley v. Morrison Cafeteria Co. of Orlando, supra, this Court, speaking through Mr. Justice Roberts said [61 So.2d 478]:
In this case it is clear that the plaintiff knew that the sidewalk in question was a brick sidewalk, in a very bad condition, and uneven. She admits she did not look where she was stepping; she took no measures whatsoever for her own safety; the condition was obvious and it was her duty to observe the obvious. Under such facts and circumstances there can be no liability on the part of the defendant to the plaintiff, and no recovery.
The appellees urge in their brief that the age of the child should excuse her of any duty to use any care for her own safety. The principle of law contended for by the appellees grew out of attractive nuisance cases and where it is shown in such cases that a minor is of such tender years or low mentality as not to appreciate danger, his contributory negligence may be excused. That doctrine has little, if any, application in this case. There is no contention that the minor child was not intelligent or that she was of low mentality. There is no contention that she was blind and could not see. The testimony is that she is between twelve and thirteen years of age. She was normal and very active for a normal child of that age. The sidewalk is not an attractive nuisance but was a rough, brick sidewalk over which she passed several times a day. Her own testimony shows that she knew of the rough and bad condition of the sidewalk. Her testimony shows her to be an intelligent individual. The Court permitted the minor in this case to testify fully and made no finding of any kind that her age, mentality or training excused her for her failure to observe the obvious. The Chancellor's only comment was, "* * * I
In the case of Dupuis v. Heider, 113 Fla. 679, 152 So. 659, 661, this Court said:
In Newby v. West Palm Beach Water Co., Fla., 47 So.2d 527, 528, a child nine years of age was involved and the Court said:
See also Teddleton v. Florida Power & Light Co., 145 Fla. 671, 200 So. 546; Connell v. Petri, 159 Fla. 67, 30 So.2d 922.
In this case, there was no contention that age excused the claimant from her own negligence until it appeared in her brief. The record does not show that it was an issue in the Court below.
The case should be reversed, with directions to set aside the order denying motion for new trial and for further proceedings in accordance with this opinion.
ROBERTS, C.J., and TERRELL, J., concur.