I cannot concur in the conclusion reached by a majority of the court.
It was alleged in the declaration that the City, defendant, "for a long time, to-wit, one month prior thereto [17 November, 1940, the date of the injury] carelessly and negligently allowed and permitted a hole [into which plaintiff was said to have stepped] to be and remain in said . . . street." It was also charged "That the defendant knew, or in the exercise of reasonable care should have known of the said condition of said street."
A plea of not guilty was filed and also one "That it is not true, and the defendant denies that it knew or should have known of the condition of said street at said time."
It is my view that the burden was placed on the plaintiff to establish by a preponderance of the evidence existence of the defect in the street for a sufficient length of time to have been discovered and repaired by the City if it exercised reasonable care. City of Tallahassee v. Coles, 4 So. 2d 874. In reading the testimony offered by the plaintiff I have found none establishing such a situation.
On the contrary, the foreman of the city highway department, the policeman who directed traffic at the *Page 209 intersection where plaintiff was injured and the policeman on that beat all testified positively that the depression was not present the day before the incident. The clerk of the highway department, whose duty it was to receive and record reports of defective streets, stated on the witness stand that a search of his records for the month preceeding the date of the mishap revealed no complaint about the condition of the street in that area. No attempt was made to contradict this important testimony.
A City is not an insurer of the users of its streets. Applying this doctrine and bearing in mind the failure of the plaintiff to establish an imperfection of long standing or to rebut proof to the contrary it is my conviction that the plaintiff should not recover.