62 Fla. 398 | Fla. | 1911
— The plaintiff in error brought this action, the first count of the declaration being as follows:
“Henrietta R. Turlington, the plaintiff aforesaid, by her attorneys, McMullen & McMullen, sues the Tampa Electric Company, defendant, aforesaid, for that whereas the defendant in the life time of one Henry E. Turlington, now deceased, to-wit: on or about the átli day of July,
Wherefore the plaintiff brings this action and claims damages in the sum of Fifty Thousand Dollars.”
The second count alleges that drinks were sold and bathing suits were rented to the public, and to the decedent, by Addison A. Hackney,' a lessee of the defendant; and the third count alleges that the bathing suits were rented to the public and to the decedent by the defendant and Addison A. Hackney. In other respects the second and third counts are similar to the first.
A demurrer addressed separately to each count of the declaration was filed, that to the first count being as follows:
“1st. Because the plaintiff has failed, in and by said first count, to make or state any cause of action whatsoever against the defendant.
2nd. Because said first count contains simply conclusions of law, without any statement of facts' from which the court could say, as a matter of law, that actionable negligence exists.
3rd. Because said first count fails to show any negligent acts of omission or commission upon the part of the defendant, or any of its ■ agents, servants or employees, that proximately contributed to the injuries alleged to have been received by the deceased.
4th. Because said first count shows upon its face that the deceased was a bare licensee, and that the defendant owed no duty to him other than to abstain from wilfully injuring him.
oth. Because said first count fails absolutely to show that the defendant failed to perform any legal duty due and owing to the deceased at the time he received the alleged injuries in question.
6th. Because said first count shows upon its face that
7th. Because said first count shows upon its face that the injuries alleged to have been received by the deceased were caused by his own contributory negligence in voluntarily assuming all the dangers connected with and incident to the use of the spring-board, and having done so, nevertheless any negligence upon the part of the defendant, there can be no recovery by the plaintiff in this case.
8th. Because there is nothing in said first count to show that the defendant had any notice of the defective and dangerous conditions with respect to the use of the spring-board, as alleged in said count.”
The demurrers to the second and third counts were similar with additions to meet the difference in the allegations. On the sustaining of the demurrer to each count of the declaration, the plaintiff declining to amend final judgment for the defendant on the demurrer was entered, to Avhich the plaintiff took writ of error, and assigns as error the order sustaining the demurrer and dismissing the action.
If the decedent would have had a cause of action against the defendant had he lived, his widow has a right of action under the statute.
Where by virtue of the relations towards each other existing between parties, the law implies a duty from one to the other, a breach of that duty that proximately causes or contributes to causing a substantial injury to
One who maintains a public resort is required by law to keep it in a reasonably safe condition for those who properly frequent the place. Where the public is invited to attend a resort, it is the duty of the one who so invites to exercise all proper precaution, skill and care commensurate with the circumstances to put and maintain the place and every part of it in a reasonably safe condition for the uses to which it may rightly be devoted. A failure-to comply with this duty may be negligence; and for an injury proximately caused by the negligence, the negligent party may be liable in damage, if the party injured is not guilty of contributory negligence. Where a negligent injury is alleged so as to state a cause of action, contributory negligence is an affirmative' and-complete defense that may be pleaded and shown' in evidence by the defendant. If contributory negligence appears in the case made by the" plaintiff there can be no recovery in the absence of an applicable statute changing the common' law rule denying a recovery "to one who' proximately contributes to his own injury that is caused by the mere negligence of another.
Where a party maintains a bath house, or a diving or
The declaration here expressly alleges that the bath house was possessed and maintained by the defendant, which was open to the public for bathing and diving and which was held out to the public as a suitable place for bathing, swimming and diving, and where bathing suits were rented by the defendant to the public; that extending out from the bath house and constituting a part of said bath house was a spring-board for diving, which spring-board was about three or four feet above the waters of Hillsborough Bay at average mean tide, that the depth of the water under the spring-board was, at average mean tide, about two and a half feet to three and a half feet; that owing to the fact that thewaterwas so shallow underneath
The judgment is reversed.