City of Jacksonville Beach v. Jones

Buford, J. 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 *96 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 Sou. 516; Fitzsimmons vs. Cesery, 61 Fla. 199, 55 Sou. 465; Loftin v. Jacksonville Electric Co., 61 Fla. 293, 54 Sou. 959; Cooperative Sanitary Baking Co. vs. Shields, 71 Fla. 110, 70 Sou. 934; Wauchula Mfg. Co., vs. Jackson, 70 Fla. 596, 70 Sou. 599; Magee vs. Frederickson, 91 Fla. 1078, 109 Sou. 197; Cummer Lumber Co. vs. Silas, 98 Fla. 1158, 125 Sou. 372. It is so ordered Eeversed. Whitfield, P.J., and Strum, J., concur. Terrell, C.J., and Ellis, and Brown, J.J., concur in the opinion and judgment.'