On petition for rehearing it is suggested that the Court overlooked some of the material issues involved, viz.: (1) the proximate cause of the death of Ralph Oenbrink; (2) that the death of the boy was accidental and not due to the negligence of the defendant in that his death was caused by a fall and not to the condition of the floor of the Blue Heron; (3) that the floor alleged to have broken when struck by the deceased while playing was not shown to be defective in quality of construction and its condition was discernible, and for these reasons there is no liability on petitioner; (4) that the acts and conduct of the deceased shortly prior to the fall contributed to his said death; (5) the inaccessible location of the Blue Heron *Page 334 on Singer Island and for this reason it was not an attractive nuisance for children; (6) that the deceased, as a matter of law, was a trespasser on the property of the petitioner when killed and for this reason there was no liability on it for the death of the boy.
The testimony in this case shows that the deceased, with other boys, went fishing in the vicinity of the Blue Heron Hotel located in Singer Island between Lake Worth and the Atlantic Ocean; the construction of the Blue Heron Hotel started around 1926 or 1927 and reached between seven and nine stories and remained unfinished; the boys failed to catch fish and went for a swim in the ocean and then for an exploration of the nearby Blue Heron Hotel; they were playing on the fourth floor when the deceased became unbalanced and fell and rolled in an unguarded shaft unto his death. The cause of the fall, it was alleged, was the condition of the floor which gave way, causing him to lose his balance. While many of the material issues of the case were sharply controverted, not only by the testimony of the witnesses, but by the contentions and argument of counsel engaged in the trial of the case, we feel that the ground submitted for a rehearing are questions of fact to be settled by a jury.
This court by previous decisions has held where on the evidence adduced there is room for a difference of opinion between reasonable men as to the existence of facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion in such cases that should prevail, and not primarily the views of the Judge. See Gunn v. City of Jacksonville,
We feel that substantial justice was awarded in the lower court. The petition for a rehearing is denied.
WHITFIELD, BROWN and BUFORD, J.J., concur.
