CITY OF JACKSONVILLE v. SMITH, 78 F. 292

MAXEY, District Judge, after stating the case,, delivered the opinion of the court. ; Error is prosecuted in this case to reverse the judgment rendered iby the circuit court adjudging the liability of the city of Jacksonville to respond in damages to the defendant in error.

The three specifications of error relied upon by plaintiff in error, in the brief .of counsel,- are the following: The court erred in refusing to give in charge to the jury the special instructions requested; in refusing ,to vacate the verdict because the evidence proved contributory negligence on the part of the defendant in error; and in refusing to jset aside the verdict because excessive. , Under the first specification, counsel for plaintiff in error states, in the following language, the real question for consideration. i «¶⅛ fundamental proposition of the defense is that upon an admission of all 'the facts, and confessing that every allegation in the declaration was true, and proved to the court and jury, yet the city of Jacksonville, being a municipal corporation, vested by statute with functions of a public nature, to be" exercised for the public benefit, is not liable in an action of tort for damages at the hands of an individual, unless such private action is expressly authorized by statute.” i ■' In view of the statement thus made , of the question for decision, 'it; is unnecessary to go into a recapitulation of the testimony developed on the trial.

It is sufficient to say the evidence discloses that .the defendant in error was injured frbm the effects of a fall she received in attempting to cross one of the streets of the city of Jacksonville, and, further, that, at the time of the injury, the street was, jaüd had'been .for some days previous, iñ a defective condition. One •.of. the witnesses thus refers to-the/condition of the street and the •occurrence..of.¡the accident: ‘‘My recollection is it was in a pretty bad condition. The street railway íiaá been raised to the grade of the street, and was some four or five inches above the level of the street.

There were several boards lying longitudinally with the railway. I think they were there from the block pavement being taken up. Some of them were turned up, and the street was in a very bad condition. I frequently n<v-ticed people had difficulty in crossing at that place, and on this occasion, when I saw the lady fall, I naturally thought she had tripped up on one of the boards, although I didn’t see her trip.

She struck the rail.” The question of law raised by tbe assignment lias had the con-' sideration of the supreme court of Florida, and in' an elaborate and carefully prepared opinion, in a case in which the plaintiff in error was a party, Mr.

Justice Van Valkenburgh, speaMng for a unanimous court, observes: 1 . “We think the true doctrine is that a municipal corporation is liable in damages to parties receiving special injuries'by reason of its nonobservance of duty in keeping its streets, alleys, etc., in good repair, although the work of such repairs is let out by contract to another person.” City of Jacksonville v. Drew, 19 Fla. 116. The Drew Case reiterates the principle announced by the court in the earlier case of City of Tallahassee v. Fortune, 3 Fla. 19.

The essential facts of the two cases above referred to are substantially similar to those in the case at bar, and the same legal principle applies here as was enforced by the supreme court in those cases. See, also, the more recent case of City of Orlando v. Pragg, 31 Fla. 111, 12 South. 368. The rule established by the supreme court of Florida is in accord with the doctrine announced by the supreme court of the United States in Barnes v. District of Columbia, 91 U. S. 540, and Detroit v. Osborne, 135 U. S. 492, 10 Sup. Ct. 1012. In the case of Barnes, 91 U. S., at page 551, Mr.

Justice Hunt, referring to a decision of the supreme court of Michigan, says: “The authorities establishing the contrary doctrine, that a city is responsible for its mere negligence, are so numerous and so well considered that the law must be deemed to be setüed in accordance with them.” In Barnes v. District of Columbia, and City of Galveston v. Posnainsky, 62 Tex. 129, 130, appears a long list of authorities sustaining the rule held by the supreme court of Florida. Counsel for plaintiff in error, however, refers to the case of Forbes v.

Board of Health, 28 Fla. 26, 9 South. 862, as maintaining a contrary doctrine. The Forbes Case is clearly distinguishable from this case and those previously decided by the supreme court of Florida. The dissimilarity was evidently thought to be so apparent that no inference is made by Mr. Justice Mabry, in his opinion, to the earlier cases. “We take it to he a sound principle,” says the supreme court, “that no proposition of law can he said to be overruled by a court which was not in the mind of the court when the decision was rendered.” Woodruff v. Parham, 8 Wall. 138.

The remaining assignments relate to the action of the circuit court in refusing to grant a new trial. Whether the court erred in overruling ihe motion for a new trial is a question which will not be inquired into here, as it was a matter in the discretion of the conrt below, and is not subject to review in this court. Railway Co. v. Struble, 109 U. S. 381, 3 Sup. Ct. 270; Zimpelman v. Hipwell, 4 C. C. A. 609, 54 Fed. 848; Mining Co. v. Fullerton, 7 C. C. A. 340, 58 Fed. 521; Alexander v. U. S., 6 C. C. A. 602, 57 Fed. 828. There being no error in the judgment of the circuit court, it is accordingly affirmed!