Carver v. City of Jackson

• Decision Date: 26 October 1903
• Citation: 35 So. 157,82 Miss. 583
• Court: Mississippi Supreme Court
• Parties: SARAH ANN CARVER v. CITY OF JACKSON

35 So. 157

82 Miss. 583

SARAH ANN CARVER v. CITY OF JACKSON

Supreme Court of Mississippi

October 26, 1903

FROM the circuit court of, first district, Hinds county. HON ROBERT POWELL, Judge.

Mrs Carver, appellee, was plaintiff, and the city of Jackson appellant, defendant, in the court below. From a judgment in plaintiff's favor defendant appealed to the supreme court. The facts are sufficiently stated in the opinion of the court.

Judgment affirmed.

McWillie & Thompson, for appellant.

The declaration alleges that the crossing "appeared to be safe," and the evidence for the plaintiff is that it appeared to be safe. Both the plaintiff and her companion Mr. Porter, when they saw it and considered it safe, had the benefit of the light of day.

The defendant had fixed the crossing so as to be safe in the opinion of the servants of the city who arranged it and who could only say whether or not it was safe from its appearance, and their affirmative conclusion was justified by that of the plaintiff and her companion.

A municipality is not an insurer of the safety of such crossings, and that all reasonable precautions had been taken by the defendant's servants is shown by the most indisputable evidence.

Had a special verdict on this question been allowable, we do not see how any member of the jury could have so stultified himself as to declare that the servants of defendant who fixed the crossing might not have reasonably concluded that the crossing was safe as arranged, and we venture the assertion that every member of this court has safely passed over hundreds of crossings that presented no greater appearance of safety.

To allow a verdict for damages to stand upon nothing more than appears in this record would be equivalent to dispensing with evidence and leaving the issue to the partial feelings, whims and prejudices of the jury. We know the disinclination of appellate courts to determine a question of fact contrary to the verdict of a jury, but when the jury have ignored the indisputable facts, the party prejudiced by their action has a right to have their verdict set aside. He has no other recourse than to appeal for relief against a verdict unwarranted by the evidence. The appellate court is not bound by any determination of fact which is clearly erroneous.

The plaintiff's second instruction submits to the jury the question of whether or not the planks were so arranged that the earth under them was "liable" to cave, etc. We object most earnestly to the use of the word "liable," as employed in this instruction. Any earth anywhere is liable to cave under certain circumstances in the ordinary use of pedestrians, as from undermining and disintegration caused by flowing water, etc. Moreover, the liability to cave, if considered at all, should have been such as resulted from its proper use.

The verdict of the jury was excessive. The plaintiff says she had her arm broken and her ribs broken and was sick afterwards with hemorrhage of the bowels, had lost her strength, etc. We ask the court to note that she says that all signs of these broken bones had disappeared; that she went on to the depot and proceeded to Flora on the morning of the accident; that she did not go to bed after she got there; that she never received the attention of a physician, and that after a short stay in Flora she went down into the country some eight miles in a buggy, where she stayed for awhile, her subsequent movements being undisclosed, but doubtless evincing the same activity.

Alexander & Alexander and H. B. Greaves, for appellee.

The law of this case as announced in plaintiff's instructions is simple and elementary. Plaintiff's instructions as drawn are substantially copies of instructions already approved by this court in Nesbitt v. Greenville, 69 Miss. 22, and in the unreported eases of Gibson v. City of Jackson and of City of Jackson v. Brown, both decided within the last few years, in which the law of the eases announced in instructions similar to these were held so elementary that the eases were not even reported.

As to the general rules of law applicable, see also Elliott on Roads and Streets, pp. 447, 455, and as to the duty to anticipate defects and make reasonable inspection, Ib., sec. 462; and on the point of notice to the road commissioner, or road overseer or person in charge of the work, or notice to the city, sections 463, 464. The fact that the sewerage work was necessary does not relieve the city of the obligation to keep the streets safe, and to protect pedestrians, Ib., 365, 458. We call the court's attention to Stainback v. Meridian, 79 Miss. 447, where the principles of law announced in plaintiff's instructions were sustained and the judgment for plaintiff was reversed solely because the bridge was not fit for public use, and the plaintiff ignored the barricades erected by the city as warning.

As to the damage being excessive, we hardly think appellant's counsel will seriously press this point. It is hardly supposable that a jury in Jackson would give a nonresident excessive damages against their own city. Surely we would not expect to find any prejudice in a case like this. The evidence, however, shows that the verdict was very moderate. Mrs. Carver was sixty-three years of age, and for twenty-seven years had made her own living as a professional nurse. She was strong and well and had enjoyed perfect health all her life. She fell a distance of five feet, and was struck in the side by one of the planks, and as it afterwards developed, two of her ribs were broken, and as a result of this, or of the shock, internal hemorrhages set in and have continued ever since, thus bringing upon her a painful, alarming and loathsome disease. Her expectancy of life was ten or twelve years, and if we look only to the support which has been taken from her, the verdict would be sustained. But when we consider the pains she endured, the lingering illness which has been entailed upon her and her being dependent upon the charity of her friends and relatives, we surely think a court would be going far beyond all precedent and the rules of law in setting up its judgment in lieu of that of the jurors. They saw Mrs. Carver, they heard her testimony, and were in a better position to judge as to the extent of her injuries. Moreover, the circuit judge saw her and heard the testimony, and declined to disturb the finding of the jury.

It is true that Mrs. Carver did not for some weeks get any medical aid. She says she did not appreciate herself the extent of her injuries, and while she could not lie down but had to sit up all the...