City of Jacksonville Beach v. Jones

In this case the plaintiff, defendant in error here, sued the defendant, plaintiff in error here, for the wrongful death of her husband. The deceased was a police officer of the municipality, the City of Jacksonville Beach. He was killed by an explosion of dynamite set in a metal pipe by an employee of the City and discharged for the purpose of removing the pipe as an obstruction on the beach which was a street of the City.

There were pleas of assumption of risk and of contributory negligence.

The evidence shows conclusively that the deceased, Jones, at the time of and before the explosion of the dynamite by the employee of the City was present and observed what the employee was about to do and was doing. That he had full knowledge of the quantity and the manner in which the dynamite was being used. It shows that he knew the dynamite was about to be discharged; that he knew how and in what manner it would be discharged and that, although he was a man thirty-seven years of age and occupied the position of a police officer, he was warned by the servant of the City about to discharge the dynamite of the danger and that he voluntarily disregarded the warning and remained in the vicinity where the dynamite was about to be discharged and was discharged. In this he was negligent and assumed the risk incident to remaining in the vicinity at such time.

The defendant sustained its pleas of contributory negligence and assumption of risk, for which reason the judgment should be reversed. See German-American Lumber Co. vs. Hannah, 60 Fla. 70, 53 So. 516; Fitzsimmons vs. Cesery, 61 Fla. 199, 55 So. 465; Loftin v. Jacksonville Electric Co., 61 Fla. 293, 54 So. 959; Cooperative Sanitary Baking Co. vs. Shields, 71 Fla. 110, 70 So. 934; Wauchula Mfg. Co., vs. Jackson, 70 Fla. 596, 70 So. 599; Magee vs. Frederickson, 91 Fla. 1078, 109 So. 197; Cummer Lumber Co. vs. Silas, 98 Fla. 1158, 125 So. 372. It is so ordered

Reversed.

WHITFIELD, P.J., AND STRUM, J., concur.

TERRELL, C.J., AND ELLIS, AND BROWN, J.J., concur in the opinion and judgment.

ON RE-HEARING. Opinion filed April 4, 1931. 1. Contributory negligence and assumption of risk are affirmative defenses and when available they should be specially pleaded and proved.

2. The only exception to the rule that contributory negligence is an affirmative defense which to be available should be specially pleaded and proved is where plaintiff permits contributory negligence to be shown without objection under other pleas, or where the alleged contributory negligence appears affirmatively in the case made by the plaintiff.

3. As a general rule, the doctrine of assumption of risk pertains to controversies between masters and servants, though circumstances may arise between parties other than masters and servants when the doctrine may apply.

4. The defense of assumption of risk is never available unless it rests upon contract, or, if not exclusively on contract, then on an act done so spontaneously by the party against whom the defense is invoked that he was a volunteer, and any bad result of the act must be attributed to the exercise of his free volition instead of the conduct of his adversary.

5. The word "assumption" imports a contract or some kindred act of an unrestrained will.

6. Whenever a man does anything dangerous he encounters the risk, but it by no means follows that, legally speaking, he assumes the risk.

7. Where no sufficient showing of contributory negligence appears in the plaintiff's evidence to bar a recovery, and contributory negligence as a defense in the case has not been specially pleaded by the defendant, and the doctrine of assumption of risk is not applicable to the basis of recovery relied on in the declaration in an action at law, the judgment must be affirmed where the facts in evidence sufficiently sustain a charge of negligence on the part of the defendant municipality in using dynamite to remove an obstruction from its city street, which dynamite is shown by the evidence to have had an explosive characteristic greatly in excess of the necessities of the case, in consequence of which the husband of the plaintiff was killed by fragmentation from the explosion.

Writ of Error to the Circuit Court of Duval County.

Judgment for plaintiff and defendant appeals.

George Couper Gibbs, Judge.

Affirmed on re-hearing.

BUFORD, C.J., AND ELLIS, J., dissent.

Lee M. Booth, of Jacksonville, for Plaintiff in Error;

Edgar W. Waybright and James Royall, of Jacksonville, for Defendant in Error.