Walker v. The City of Vicksburg

• Decision Date: 19 March 1894
• Court: Mississippi Supreme Court
• Parties: R. E. L. WALKER, BY NEXT FRIEND, v. THE CITY OF VICKSBURG

15 So. 132

71 Miss. 899

R. E. L. WALKER, BY NEXT FRIEND, v. THE CITY OF VICKSBURG

Supreme Court of Mississippi

March 19, 1894

March 1894

FROM the circuit court of Warren county, HON. JOHN D. GILLAND Judge.

Plaintiff a minor nineteen years old, though not in the employ of the city of Vicksburg, had sometimes driven the hose-reel of the fire department to fires. He was at an engine-house when an alarm of fire, in a distant part of the city, was given. The employe in charge of the engine-house and apparatus being absent, he consented to drive the hose-reel, drawn by a spirited horse, to the fire, and was cautioned to drive carefully. Proceeding in the direct course towards the fire he drove westwardly down Jackson street on the left of the street-car track. Just before reaching Cherry street, where he wished to turn south at right-angles, he observed an iron post standing near the corner, about twelve feet from the track, and, believing that he would not have room to pass between this post and the track, which curved southwardly into Cherry street, he attempted to cross the track intending to go round on the north and west side of it. The track was elevated several inches above the surface of the street, and, as he attempted to turn, the wheels slipped along the iron and ran into a hole by the track, and the vehicle was overturned, causing severe injuries to plaintiff, for which he brought this suit. Defendant pleaded the general issue and contributory negligence. On the first trial plaintiff obtained a verdict for $ 1,500. On motion of defendant, the court granted a new trial, which resulted in a peremptory instruction for defendant. Verdict and judgment accordingly. Plaintiff appeals.

On behalf of plaintiff, the evidence tended to show that the hole by the street-car track was a deep one, and that the bad condition of the street at that point had been known to the city authorities for several months prior to the accident. Plaintiff testified that he was not driving rapidly, and that he did not know of the hole in the street. It was shown that the street-car track was high, and that it had since been torn up by the city as a nuisance. On behalf of defendant, there was testimony to show that plaintiff was driving rapidly; that vehicles could easily pass between the post and the street-car track; that the hose-reel was overturned in the attempt to cross the track, and that the exercise of ordinary care would have prevented the injury. The accident occurred in the day-time.

Affirmed.

Gibson & Henry, for appellant.

The evidence abundantly establishes the negligence of defendant. The street, already obstructed by the post and the railroad-track, was permitted to remain for a year out of repair. But for the hole and the elevated track, the accident would not have occurred. Plaintiff took the risk of defects in the apparatus with which he worked, but he had the right to rely upon the streets being in good condition. Coots v. v. Detroit (Mich.), 43 N.W. 17; Galveston v Hemmis, 72 Texas, 558; Welter v. St. Paul, 40 Minn....