#### CITY OF PALATKA, a municipal corporation organized and existing in Putnam County, State of Florida, Appellant, v. Elsie WOODS, Appellee.

Supreme Court of Florida. En Banc.

March 4, 1955.

See, also, 163 So.2d 636.

Walton & Walton, J. V. Walton and Kate L. Walton, Palatka, for appellant.

Charles J. Kapfer, Palatka, for appellee.

*563DREW, Justice.

It is seldom that a record establishes negligence of a city for defective maintenance of its sidewalks as clearly as in this case. That the condition of the sidewalk at the place where the plaintiff below was injured was dangerous to pedestrians appears conclusively from the photographs in evidence and from the lips of all the witnesses. It is not even questioned in the evidence that this stretch of sidewalk had remained in such defective and dangerous condition for a period of at least ten years, thereby establishing beyond any doubt one of the elements which is sometimes missing in cases of this kind, namely that the city unquestionably had knowledge of the dangerous condition and ample time and opportunity to remedy it.

There is a line which separates the cases where the existence of contributory negligence is a matter of law and where the question is one to be determined by the jury. In the case of Brant v. Van Zandt, Fla., 77 So.2d 858, 861, opinion filed November 5, 1954, we endeavored to clarify that distinction in cases like this when we stated:

> “From these cases the rule seems to be clearly established that where a person proceeds in the dark but has a right reasonably to expect that the route ahead is free of the particular physical impediment which causes injury, it is for the jury to determine from all the circumstances whether that person used due care. Rubey v. William Morris, Inc., supra [Fla., 66 So.2d 218]; Goldin v. Lipkind, supra [Fla., 49 So.2d 539, 27 A.L.R.2d 816], See also Mertz v. Krueger, Fla.1952, 58 So.2d 160. But where a person has knowledge or notice of a particular physical impediment causing injury, he cannot be said to have a right to assume the place is safe. And, subject to exceptions hereafter noted, if he proceeds while aware of the darkness and is injured by an encounter with the very impediment which he knew or should have known existed, he is guilty of contributory negligence as a matter of law. Breau v. Whitmore, supra [Fla., 59 So.2d *748];*Westerbeke v. Reynolds, supra [155 Fla. 2, 19 So.2d 413]; Norman v. Shulman, supra [150 Fla. 142, 7 So.2d 98], See also Nussbaum v. Sovereign Hotel Corp., Fla., 1954, 72 So.2d 814.”

Applying the above rule, the question of contributory negligence in this case is squarely for the jury to decide. The evidence clearly shows that the plaintiff below was not aware of the dangerous condition of the sidewalk prior to the time of injury. Therefore, the question of whether the failure to observe the condition constituted contributory negligence was one for the jury. The case would have fallen under the other rule had the witness testified or had the evidence otherwise established that the plaintiff knew of the defective condition of the sidewalk prior to the time she proceeded forward in the dark.

Moreover, on the question of contributory negligence, in the recent case of City of Jacksonville v. Stokes, Fla.1954, 74 So. 2d 278, 279, (a sidewalk case), we held that the question there was one for the jury to determine. In that case we said:

> “The question is whether one should be aware of the danger. This depends largely upon the likelihood of encountering danger. Very rarely do objects from above cause us harm, so persons are not careless who do not go about examining the sky. *One need not look for danger unless there is reason to expect it.”*(Emphasis added.)

In the instant case the plaintiff was walking along a smooth concrete public sidewalk in the City of Palatka. It was after dark. The plaintiff had a right, under such circumstances, to assume that the place furnished by the City for pedestrians to walk over was reasonably safe for that purpose. She was not required to carry a flashlight to discover whether a walkway which she had a right to assume to be safe was safe in fact. Whether her conduct in failing to see and avoid the danger contributed to her injury under such circumstances was for the jury to decide.

*564In the matter of the alleged variance, there is grave doubt as to whether any variance between pleading and proof occurred and whether the question is raised. The motion for directed verdict relied upon to raise this point merely stated that “there is a fatal variance” between pleading and proof but failed to mention in what particular the variance existed. But, even if it be conceded that the question is raised and that there is some discrepancy between plaintiff’s pleading that she stepped into a hole or crevice at a place where the sidewalk was broken but proved that she stumbled at that place over a portion of sidewalk which was broken and projecting about six inches to a foot high, such discrepancy is wholly immaterial because it could not conceivably have misled or prejudiced the defendant. During the trial the defendant made no claim of prejudice in this respect; nor does the defendant on this appeal point to any manner in which the alleged variance caused it any disadvantage.

Affirmed.

THOMAS'-and HOBSON, JJ., concur.

BARNS, J., concurs specially.

MATHEWS, C. J., and SEBRING and ROBERTS, JJ., dissent.

BARNS, Justice

(concurring specially).

The appellee-plaintiff recovered a verdict and judgment against the appellant-plaintiff city and after defendant’s motion for new trial was denied the defendant-city appealed. It seems that the trial judge has not erred and that we should affirm for the lack of harmful error by the lower court having been established.

The claim against the city-defendant was for negligence in the' maintenance of its sidewalks and the defense expressed in nine separate items termed “defenses” amounted to an answer of the 'general issue and contributory negligence. ■ '

The defendant-city submits that the court’s denial of the motion for directed verdict and for a new trial gave rise to its first question. After reading assignment of errors one, two and three this seems doubtful, however, the doubts will for present purposes be dismissed.

Appellant’s first question presented is: Whether there is a fatal variance between a complaint ■ alleging that the plaintiff became crippled and lame by reason of stepping in a hole or crevice in a sidewalk and proof that plaintiff stumbled over an obstruction approximately a foot in height on said sidewalk and broke her wrist.

The appellee’s pleading alleged that her injury was occasioned by her fall into a deep crevice or hole in the said sidewalk while the proof was that she stumbled over the portions of the concrete sidewalk that had been broken and elevated six or more inches by the roots of a large oak tree growing adjacent to the sidewalk.

Rules of Civil Procedure, rule 1.15(b) provides: Amendments to Conform with the Evidence. “When issues not raised by the'pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment or decree; but failure so to amend shall not affect the result of the trial of these issues. If the evidence is objected to at the trial on the' ground that it is not within the issues made by the pleadings the court may allow the pleadings to be amended to conform with the evidence; and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice him in maintaining his action or defense upon the merits.”

The present rule above quoted is identical with our previous Common Law Rule 15(b) both of which are the same as Federal *565Rules of Civil Procedure, rule 15(b), 28 U. S.C.A., except that the last two sentences of the Federal Rule 15(b) provides: “If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.” *The reason for, or the advantage of this deliberate departure is not evident.*

The record of the trial proceedings shows that the case was tried to the jury on the evidence presented to it without any objection grounded on a variance between the pleading and the proof offered. The above mentioned rule was for the purpose of advancing the intent of the statute of jeofails or harmless error statutes, F.S. §§ 54.23, and 54.26, F.S.A. and to liberalize statutes and rules of court relating to amendments of pleading. For a better statement see Rule 61 of the Federal Rules of Civil Procedure which provides: “Harmless Error. No error in either the admission- or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every •stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” For the want of harmful error this point fails.

Appellant’s second point presented is based on contributory negligence. Suffice it to say that the sidewalk had been defective for ten years which was long enough for the city to leam of its condition; that plaintiff was going south on the west side of the street • and she had not previously traveled'the west side of the street; that the’ accident occurred in the night time; that there was a light ahead and to her left which placed the trunk of the oak between the plaintiff at the place of the injury and the light. See defendant’s exhibit 5 and plaintiff’s exhibits 1, 2 and 3. Questions of fact are to be resolved by the jury when different inferences of fact may be reasonably drawn from the established facts.

No harmful error having been made to appear to have been committed by the lower court the judgment appealed should be affirmed.

HOBSON and DREW, JJ., concur.

MATHEWS, Chief Justice

(dissenting).

This is an appeal from a final judgment in a personal injury case.

The appellee alleged that she was injured while a pedestrian on a sidewalk in Palatka. The accident happened on the 17th day of February, 1952, and in the complaint the appellee alleged the appellant maintained the sidewalk in. a defective and unsafe condition by reason of which she did “necessarily stumble and fall by reason of her feet unavoidably and necessarily falling into a deep crevice and/or hole in said sidewalk, which said crevice and/or hole was caused by the defective and unsafe condition of said sidewalk as aforesaid”. The appellant pleaded the general issue and contributory negligence. As to the negligence of the appellant, the burden of proof was upon the appellee. If the pleadings and evidence of the appellee fail to show any contributory negligence, then the burden of proof of contributory negligence was upon the appellant.

The appellee testified that on Sunday afternoon, about 7:00 o’clock in the evening, she was going to church. It had rained heavily that day and she crossed over from the side of the street she regularly used and was walking on the- other side -of the street when she stumbled into the sidewalk and *566fell, between 25 and 50 feet from the corner where there was a street light. She-broke her arm. She testified she had never noticed the condition of the sidewalk before she fell and that she stumbled over a piece of sidewalk, or paving, which was between 6 and 12 inches above the level of the sidewalk. In her complaint appellee alleged that she fell into a crevice or hole. She further testified that she clearly saw the condition of the sidewalk after she had fallen but did not see the condition before she fell. The testimony in that regard is as follows:

> *“Q.*You have said that these, as I understand it, that these represent the location of the place on the sidewalk on 13th Street where you fell? A. Yes ma’am.

> “Q. How soon after you fell did you go back and look at the place on the sidewalk? A. I can’t tell you. I didn’t go back in a long time.

> “Q. You can’t really say whether this is a clear picture of the sidewalk as it was when you fell? A. Yes’m.

> “Q. Well, *didn’t you say it was dark when you fell?*A. *Yes, but I could see that after I fell, and glanced at it.*

> *“Q. Could you see it clearly enough to positively identify these pictures?*A. *I sure can.,*

> “Q. *And you can mark out the different places on it?*A. *Yes ma’am.*

> “Q. And it is just exactly the way it was when you fell? A. Yes ma’am.”

The record shows that the sidewalk and the place where the accident happened was substantially in the same condition it had been for a period of more than 10 years; that there was a large oak tree on the edge of the sidewalk and throughout the years the roots from such tree had grown larger under the sidewalk and had caused the condition. The tree was plainly visible to anyone and the condition of the edge of the sidewalk next to the tree was obvious and plainly visible to anyone. For more than 10 years *the*sidewalk had been used by pedestrians and no one had ever complained of the condition of the sidewalk to the City and so far as the record shows, no one had ever been injured by reason of the obvious condition of such sidewalk.

If it be admitted that the City was negligent because it had failed to cut the tree down and re-lay the sidewalk in smoother condition or in permitting the sidewalk to remain in the condition it was for more than 10 years, the proof submitted by the appellee that she fell on the sidewalk because she stumbled into a piece of concrete or sidewalk 6 to 12 inches higher than the ground level constituted a material variance from the allegation of the complaint that she fell into a deep hole or crevice. It is possible that a deep hole or crevice may not be observed by a pedestrian as readily as a piece of sidewalk or concrete 6 to 12 inches higher than ground level. The mere fact that the appellee, after falling and breaking her arm and while in great pain, could see and' describe the concrete or piece of sidewalk 6 to 12 inches above ground level, shows, that the condition was obvious and that had she been looking she would have seen that which was so obvious and plainly visible.

A piece of sidewalk or concrete standing-6 to 12 inches above the street level was not latent or concealed but was “patent and-obvious, and the ordinary use of her senses, by the * * * [appellee] would have disclosed it to her.” Earley v. Morrison, Cafeteria Co. of Orlando, Fla., 61 So.2d. 477, 478.

In the case of Matson v. Tip Top Grocery Co., 151 Fla. 247, 9 So.2d 366, 368, this. Court said:

> “Plaintiff was in turn obligated to exercise a reasonable degree of care for her own safety. * * * The duty which the plaintiff owes tp herself is to observe the obvious and apparent, condition of the premises.”

*567See also opinion On Rehearing in Bowles v. Elkes Pontiac Co., Fla., 63 So.2d 769, and Andrews v. Narber, Fla., 59 So.2d 869.

The case should be reversed, with directions to set aside the final judgment and grant motion of the appellant for a new trial.