Opinion
July 10, 1951. Rehearing Denied July 31, 1951.
Appeal from the Circuit Court, Dade County, N. Vernon Hawthorne, J.
Dixon, DeJarnette Bradford, Miami, for appellant.
Cushman, Woodard Gotthardt, Miami, for appellees.
On rehearing granted, a majority of the members of this Court are of the opinion that the questions of defendant's negligence and the contributory negligence of the plaintiff were properly submitted to the jury with full and fair instructions on the law applicable thereto, and on the basis of sufficient evidence which, if true, would justify a verdict in her favor. Under such circumstances, this court is not authorized to substitute its judgment for that of a jury selected and qualified according to law to try the issues. See Town of De Funiak Springs v. Perdue, 69 Fla. 326, 68 So. 234, 237; Florida Power Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911, 920; Pendarvis v. Pfeifer, 132 Fla. 724, 734, 182 So. 307; Tampa Shipbuilding Engineering Corp. v. Adams, 132 Fla. 419, 181 So. 403, 408; Southern Express Co. v. Williamson, 66 Fla. 286, 63 So. 433, L.R.A. 1916C, 1208; Parrish v. Clark, 107 Fla. 598, 145 So. 848, 851; Toll v. Waters, 138 Fla. 349, 189 So. 393, 397.
Accordingly, after rehearing and reconsideration the judgment of the lower Court is
Affirmed.
CHAPMAN, ADAMS, HOBSON and ROBERTS, JJ., concur.
SEBRING, C.J., and TERRELL and THOMAS, JJ., dissent.
For four years the appellee, Annie Elizabeth Smith, served as a waitress in a restaurant located in a hotel owned by the appellant but operated by an independent restaurateur. A stair led from the restaurant to the basement, where there were dressing rooms used by those employed in the restaurant and in the hotel; so the stair was a means of ingress and egress both to hotel and restaurant employees.
The steps were of narrow tread and rather steep, with open risers.
The declaration contains allegations that the defendant had allowed the stairs to become wet and slippery, and in that condition, because of their peculiar design, they constituted an unsafe place for her to work, but this feature does not seem to have been, or to be now, stressed. On the contrary it is contended that appellee was injured when the heel of her shoe caught in the back of a step, causing her to stumble and fall. She had been going up and down the steps from four to seven times daily for many months, and all that time they had been in the same condition. At the time of the mishap she was not only fully aware of the construction of the steps but she was looking down at them as she descended.
This brief description of the place and manner of the appellee's injury, taken from her own testimony, convinces me that she was entirely familiar with the stairway from her frequent use of it and that any danger from placing her heel too far back in the open riser was so obvious that her injury resulted from her own carelessness, — as distinguished from contributory negligence, because it does not appear that the stairway itself was unsafe simply because of its design.
Having this view from the salient facts which she herself gave, I am of the opinion that the judgment should be reversed, so I dissent.
SEBRING, C.J., and TERRELL, J., concur.