Birdsong v. Town of Mendenhall

• Decision Date: 27 June 1910
• Docket Number: 14606
• Citation: 97 Miss. 544,52 So. 795
• Court: Mississippi Supreme Court
• Parties: JAMES S. BIRDSONG v. TOWN OF MENDENHALL

52 So. 795

97 Miss. 544

JAMES S. BIRDSONG v. TOWN OF MENDENHALL

No. 14606

Supreme Court of Mississippi

June 27, 1910

FROM the circuit court of Simpson county, HON. ROBERT L. BULLARD Judge.

Birdsong appellant, was plaintiff in the court below; the town of Mendenhall, appellee, was defendant there. From a judgment predicated of a peremptory instruction in favor of defendant the plaintiff appealed to the supreme court.

The plaintiff himself testified that he knew of the defect in the street of which he complained; that he had seen it a number of times before he was injured but that in attempting to use the street he was careful and prudent. His foot was caught in, a hole and he was tripped and fell and sustained the injuries for which he sued.

Reversed and remanded.

E. L Dent, and Flowers, Fletcher & Whitfield, for appellant.

The peremptory instruction in favor of the municipality seems to have been given upon the erroneous idea that it was the duty of the plaintiff, under the circumstances described by him to abandon the sidewalk. Under the theory adopted by the trial court, if one knows that a sidewalk is defective, he may not undertake to use it even with the exercise of great care in his use of it to avoid injury to himself, but if there is ground adjacent to the sidewalk left for him to walk on which is suitable, then he must abandon the use of the sidewalk and use the ground as a passage way.

Whether one has used a sidewalk carefully is a question for the jury. Whether he should have used it at all is a question for the jury. It is the duty of the municipality to keep up its sidewalks. It cannot permit them to remain in that condition until it becomes notorious, and then require every pedestrian to abandon them. Whether the walks are defective or not, they may be used by the public. Knowing of the defect is only one fact to be taken into consideration when it becomes necessary to decide whether the one injured is guilty of contributory negligence. In such cases the question is not alone whether he had knowledge, but, having such knowledge, whether it was negligence on his part to undertake to use the sidewalk in the manner in which he did use it. Pascagoula v. Kirkwood, 86 Miss. 630.

It will be noted, too, that in the Pascagoula case, supra, the injured party, Mrs. Kirkwood, knew of the defect complained of, and had not temporarily forgotten about it, but was keeping it in her mind and was regulating her movements to avoid the defect, and while exercising due care, she was injured. That is precisely the case at bar. Birdsong knew that the sidewalk was defective, and he concluded that he could use it, and was proceeding with all due care, but despite such due care he was injured. The trial court in effect held that he did not examine the ground near the sidewalk to find out whether it was muddy. Appellant testified that it was raining and had been raining for some time, and certainly it may be presumed that he might use his reason and experience and know that the ground was muddy. Water falling upon bare earth always makes mud. Appellant knew that this happened. It was not necessary for him to make an examination to see if this had happened. Natchez v. Lewis, 90 Miss. 310; Meridian v. McBeth, 80 Miss. 485; Jackson v. Carver, 82 Miss. 583.

J. P. & A. M. Edwards, for appellee.

It was the grossest negligence on the part of appellant to attempt to use the sidewalk as he did with full knowledge of its dangerous condition and especially when he had ample room on the ground constituting a part of the sidewalk on which he could have traveled with absolute safety and with no inconvenience, save that of getting dirt or perhaps mud on his feet.

The case of Pascagoula v. Kirkwood, 86 Miss. 630, cited by appellant, is not in...