From Casetext: Smarter Legal Research

Pentecost v. City of Miami

District Court of Appeal of Florida, Third District
Aug 13, 1963
155 So. 2d 395 (Fla. Dist. Ct. App. 1963)

Opinion

No. 62-755.

June 25, 1963. Rehearing Denied August 13, 1963.

Appeal from the Circuit Court, Dade County, Pat Cannon, J.

Carey, Goodman, Terry, Dwyer Austin and Joseph A. McGowan, Miami, for appellant.

Robert D. Zahner, City Atty., and John S. Lloyd, Asst. City Atty., for appellee.

Before PEARSON, TILLMAN, C.J., and BARKDULL and HENDRY, JJ.


This is the second appearance of this case in this court. The factual situation which gave rise to this cause of action is set forth in a previous opinion, Pentecost v. Ansan Corporation, Fla.App. 1962, 136 So.2d 667, wherein this court reversed a summary judgment rendered in favor of the appellee City of Miami and another, and remanded the matter for trial. Upon it coming on for trial [in accordance with our previous opinion] at the conclusion of the plaintiff's testimony the trial judge directed a verdict for the appellee City and this appeal ensued.

Although the appellant assigned errors which may have been sufficient to challenge the failure of the trial judge to permit certain testimony into evidence, upon the preparation of the brief the only point preserved for review was the contention that the evidence properly before the trial judge, at the time of the direction of the verdict, was sufficient to make a prima facie case for the appellant. This is the only point for consideration by this court, as errors assigned and not argued are deemed abandoned. See: Carroll v. Hertz Corporation, Fla.App. 1961, 132 So.2d 624; Parsley Brothers Construction Co. v. Humphrey, Fla.App. 1962, 136 So.2d 257; Rule 3.7i, Florida Appellate Rules, 31 F.S.A.

Bearing in mind the factual situation as related in Schutzer v. City of Miami, Fla.App. 1958, 105 So.2d 492, at the time the cause came on for trial the appellant's evidence was deficient in 2 particulars: first, she could not establish that the protruding pipe was in fact the object over which she stumbled and, second, she made no attempt to prove for what period of time the pipe in question may have been protruding, in order to put the municipality on constructive notice [no contention of actual notice was made] of the dangerous situation. Examining the record and finding it deficient in these 2 particulars, it appears that the trial judge did not err in granting the directed verdict and, therefore, the action is hereby affirmed.

Affirmed.


Summaries of

Pentecost v. City of Miami

District Court of Appeal of Florida, Third District
Aug 13, 1963
155 So. 2d 395 (Fla. Dist. Ct. App. 1963)
Case details for

Pentecost v. City of Miami

Case Details

Full title:NELLIE PENTECOST, APPELLANT, v. CITY OF MIAMI, A MUNICIPAL CORPORATION…

Court:District Court of Appeal of Florida, Third District

Date published: Aug 13, 1963

Citations

155 So. 2d 395 (Fla. Dist. Ct. App. 1963)

Citing Cases

Nasrallah v. Corley

Appellant has in fact assigned as error the denial of his motion for new trial but said assignment is not…

Harshbarger v. Miami Herald Publishing

Thus, there was not a single shred of evidence to establish that the newspaper wire of the defendant Miami…