#### CITY OF ORLANDO, Appellant, v. C. C. MONTFORT and Josie F. Montfort, his wife, Appellees.

No. 226.

District Court of Appeal of Florida. Fourth District.

Sept. 8, 1966.

On Rehearing Sept. 13, 1967.

*139W. David Rogers, Jr., of Gurney, Gurney & Handley, Orlando, for appellant.

Bernard J. Zimmerman, of Akerman, Senterfitt, Eidson, Mesmer & Robbinson, Orlando, for appellees.

WALDEN, Chief Judge.

ON PETITION FOR REHEARING

We granted the petition for rehearing presented by appellant, City of Orjando. Upon reconsideration we are persuaded that our initial opinion, filed on September 8, 1966, was erroneous. The new conviction herein expressed is that the judgment appealed must be reversed.

This was a negligence suit with the gravamen of plaintiff’s complaint being that the city “did so negligently and carelessly maintain and control its streets as to cause, permit and allow two depressions in the pavement * * * at a depth and width dangerous and unsafe for vehicular traffic to cross at normal speeds permitted by law *•without any signs erected to warn or indi-ca-te to persons traveling in motor vehicles** * * *of the dangerous condition** * (Emphasis added.)

The undisputed proofs with reference to the material elements reveal that the city did construct two depressions or dips in the pavement for valid drainage purposes. The plaintiff wife traversed the street as a passenger in a motor vehicle. It struck the dip resulting in personal injuries to her.

At the time of the accident there were no warning signs in place to warn motorists of the condition.

It is further undisputed that the city had erected warning signs as concerns the dips about 15 months prior to the accident.

There was a total lack of testimony, direct or indirect, to show that the city possessed actual or constructive knowledge that the signs were missing at or before the time of the accident.

Despite a request on the part of the city, the trial court failed to charge the jury concerning the city’s erection of warning signs and the necessity for the plaintiff to prove notice on the part of the city that such signs had been removed. In so doing the court ignored a principle of law appli: cable under the circumstances, and this act constituted reversible error. This rule is stated in 63 C.J.S. Municipal Corporation § 838c:

> “If proper guards are erected, or lights or signals are established, in order to prevent accidents, the municipality will not' *140as a rule be subject to liability merely because such barriers, lights, or signals are removed or rendered ineffective without fault on its part and without notice to it, as by the unauthorized act of third persons or by accident of which the municipality has no notice. Ordinary care, however, must be exercised, and, if it fails to act accordingly, a right of action arises against a municipality which has notice of such removal in due season to replace the barrier or light or has grounds for anticipating its destruction or removal. What constitutes a reasonable time within which the city must replace such guards and signals depends on the particular circumstances. * * * ”

See also 25 Am.Jur., Highways § 438; City of Jacksonville v. Bell, 1927, 93 Fla. 936, 112 So. 885, 53 A.L.R. 163; Primus v. City of Hot Springs, 1953, 57 N.M. 190, 256 P.2d 1065; Braden v. City of Pittsburgh, 1941, 143 Pa.Super. 427, 18 A.2d 99; Rathbone v. Fort Pitt Bridge Works, 1937, 118 W.Va. 479, 191 S.E. 578; MacGowan v. State, 1955, 286 App.Div. 928, 142 N.Y.S.2d 651; City of Rome v. Alexander, 1940, 63 Ga.App. 301, 11 S.E.2d 52 and the annotation at 62 A.L.R. 500.

It is our judgment that there has been a departure from the essential requirements of law which can only be remedied by a new trial. The final judgment is reversed.

Reversed.

CROSS, J., concurs.

ANDREWS, J., dissents with opinion.

ANDREWS, Judge

(dissenting).

I respectfully dissent from the opinion of reversal in this cause.

The record discloses that the “dip” which was the proximate cause of the injuries to the plaintiff was constructed with the knowledge and consent of the city by the subdivision developer. The type of construction was used because it is a more economical method of handling storm drainage than the use of underground pipes. It was further shown that there were five or six similar “dips” throughout the city.

The majority decision holds, in effect, that notice to the city, actual or constructive, that the signs designating said “dip” as dangerous were missing at or before the time of the accident must be shown by the plaintiff. If the city is shown to have had such notice, it must then be shown that such notice was sufficient to give the city a reasonable time to replace such sign.

There was sufficient evidence upon which the jury could have found that the depression at the intersection constituted a continuing inherently hazardous condition and that at the time of the accident the public was not adequately warned of the condition. The duty of the city to warn the public of an inherently dangerous condition which it permits to exist is not fulfilled by the mere placing of a sign. 63 C.J.S. Municipal Corporations § 766, at 62, § 799, at 111-112. There is a further duty to make reasonable inspection to see that the public is adequately safeguarded from the dangerous condition intentionally created by the municipality. Singleton v. City of Jacksonville, Fla.App. 1958, 107 So.2d 47. The city has offered no evidence that it had inspected the intersection during the fifteen-month interval from the time the sign was allegedly erected until the date of the accident. The city by the exercise of reasonable prudence should have discovered the absence of the -warning sign of the inherently dangerous condition. Jenkins v. Brackin, Fla.App.1965, 171 So.2d 589.

Under such circumstances I feel that the defendant cannot relieve itself of liability nor defend an action for personal injuries on the basis of lack of notice that the warning sign was down. To so hold would not make the city an insurer of the safety of its streets, but it would place upon the city a duty to adequately warn the public where it permits inherently dangerous conditions to exist.

Accordingly, I would affirm.