City of Biloxi v. Schambach, 42748

• Decision Date: 04 November 1963
• Docket Number: No. 42748,42748
• Citation: 157 So.2d 386,247 Miss. 644
• Parties: CITY OF BILOXI, a Corporation, v. Mrs. Ruth Ladnier SCHAMBACH.
• Court: Mississippi Supreme Court

Page 386

157 So.2d 386

247 Miss. 644

CITY OF BILOXI, a Corporation, v. Mrs. Ruth Ladnier SCHAMBACH.

No. 42748.

Supreme Court of Mississippi.

Nov. 4, 1963.

Rae Bryant, Gulfport, for appellant.

Thomas J. Wiltz, Biloxi, for appellee.

BRADY, Justice.

The appellee sued and recovered judgment in the Circuit Court of Harrison County against the appellant in the sum of $8,000 for personal injuries sustained by a fall on one of appellant's sidewalks. The fall was alleged to have been caused by the rising of one section of a sidewalk and the subsiding of an adjoining section, so that the east section was several inches higher than the west joining section, and that grass had been permitted to grow in a dividing crevice or crack between the two sections; that because of the abruptness and change in grade or height from one level of one section of the sidewalk to another, amounting to several inches in difference; and because of the grass that thereby a dangerous situation was created on which persons using the sidewalk in the exercise of ordinary care might be calculated to trip or stumble to their injury and damage.

The appellant filed a motion for a judgment notwithstanding the verdict, and for a new trial, and assigns as errors the refusal of the court below to grant to the defendant a directed verdict at the conclusion of the plaintiff's testimony, and also that the verdict of the jury is against the overwhelming weight of the testimony. It is upon the refusal to grant the peremptory instruction to find for the defendant that the briefs of the appellant and appellee are directed.

The proof shows that the appellee, on a bright Sunday afternoon, July 2, 1961, between two and three o'clock, when she was approximately seven months pregnant, was walking in an easterly direction on the sidewalk adjacent to the north side of East Beach in the City of Biloxi. The weather was hot and the visibility was good; the sun was bright at times and at other times hazy; that while the appellee was passing in front of the home of one Mrs. Pringle, she came to a point where the sidewalk was uneven and where there were two different sections. One section of the sidewalk had subsided, or formed a depression or sunken angle compared to the other section, that they were very uneven, and there was grass growing in between this area. Appellant testified that the difference was approximately three or four inches at one end (north), and over two inches at the other end (south) of the sidewalk which extended east and west. The proof shows that the appellee stumbled or tripped over this change of height in the sidewalk, on the north side.

Appellant's attorney asked the following question:

'Q. State what happened and what the situation was and just what happened as you proceeded in front of the home of Mrs. Pringle.'

The appellee replied:

'A. Well, I was walking leisurely along. I was in no hurry, and I tripped and fell on the broken or sunken section of the sidewalk. There was quite a bit of grass growing in between the sections.'

'Q. What was the nature of this defect? Just explain what the nature of that defect was in the sidewalk.

'A. Well, the two different sections were uneven. One was a lower or depression or sunken angle compared to the other. They were very uneven, and there was grass growing in between this area.

'Q. There was an abrupt difference in the sidewalk?

'A. Yes, sir, it was several inches.

'Q. You say there was a difference of how much?

'A. Several inches. I would say approximately three or four inches at one end, and over two inches at the other end.

'Q. Did that difference extend all the way across the sidewalk?

'A. Yes, sir, it did.

'Q. Was that a break in the sidewalk, or was it where the sidewalk came together?

'A. It was where the concrete came together at the sections.

'Q. At that differential you state extended all the way across?

'A. Yes, it did.

'Q. Now you state that you were caused to trip and stumble at that particular time, is that correct?

'A. Yes, sir.'

This was the testimony developed by the appellee's attorney from the appellee on direct examination. On cross-examination, we find the following pertinent testimony:

'Q. The area then was well lighted, there was no difficulty from the standpoint of being covered up by shade or shadows, it was well lighted, is that right?

'A. Other than the grass growing in that particular area.

'Q. You saw the grass, did you, Mrs. Schambach?

'A. Yes, you could see the grass. It camouflaged the cement.

'Q. You couldn't see the sidewalk beyond the grass? The grass was up above eye level?

'A. No sir, the grass was above the level of the raised portion of the cement.

'Q. You were then approaching from the left of the photograph to the right, is that right?

'A. Yes sir.

'Q. May I ask you, Mrs. Schambach, if in that approach if the uneven section of the sidewalk was lower at the point where you were approaching it from than it was beyond it further on to the east?

'A. Yes, it was, as you can see, the grass is growing there quite a bit.'

The appellee was looking at her photograph, Exhibit 3. She testified that her Exhibits 2, 3 and 4 accurately and fairly represented the condition as it existed the day that she fell.

'Q. Now this photograph here, No. 4, does it fairly and accurately represent the condition as it existed at the time you fell, Mrs. Schambach?

'A. Yes, sir, you can't see the cement on this side.

'Q. I didn't ask you that. I asked you if it fairly and accurately represented the condition as it existed.

'A. Yes, it does.

'Q. Now if you want to say anything else you may do so.

'A. Well, as you are crossing this area, and if you are seven months pregnant, you don't see directly beneath you feet. As you can see, the grass is growing over profusely on the left side, and you don't see the top of the cement right in the particular area on the left side.

'Q. You were walking, Mrs. Schambach, along the north edge of the sidewalk?

'A. Yes, sir.

'Q. Just as close to the edge as you could get, is that right?

'A. I wouldn't say as close as I could get, but it was on the north side.

'Q. You say it had been a couple of months since you had been down in that area?

'A. It had been approximately three months.

'Q. Then that condition didn't exist the last time you were down there? Is that right?

'A. As far as I know the condition of the street all along that area has existed for quite a while.

'Q. This same condition had existed when you were down there three months before that?

'A. Yes, sir.

'Q. And you tell this court and jury that you couldn't see this condition because of the grass, is that right?

'A. Grass was growing right in the crack where the separation was.

'Q. You didn't look on the other side of this grass to see what was there, did you?

'A. You can't very well look on the other side when you are seven months pregnant. I was doing the best I could. I was walking along the street in a normal and leisurely manner.

'Q. You didn't notice the sidewalk was higher at one place than the other did you, Mrs. Schambach?

'A. The sidewalk was higher, yes, but there was grass growing between there and you didn't notice how much higher.'

The proof shows that the appellee had been living at 1015 East Beach for more than four years prior to this accident; she fell in front of 1029 East Beach. She estimated that the width of the sidewalk was that of a normal sidewalk. She testified further that the pictures, or exhibits, introduced by appellant as Exhibits A and B, fairly and accurately represented the condition of the sidewalk and the location on the date that she fell and sustained the injuries complained of. She marked on Exhibit A an 'X' where she alleges she actually fell, and on Exhibit B it is marked by a group of circles. She testified further that she moved over to the left side.

'Q. There wasn't anything except this grass that you claim was there to keep you from seeing the difference in the sidewalk, was there?

'A. Anything other than being seven months along.

'Q. You could see there on the right edge, you could see the disparity in the height there, couldn't you, Mrs. Schambach?

'A. You could see the concrete protruding more on the right side, but on the left side there was more grass and it looked more even.

'Q. You saw that did you, as you approached?

'A. Yes, I saw the grass.

'Q. What about the cement over on the right hand side, did you notice that?

'A. That's why I was walking on the left hand side.

'Q. You saw that and moved over to the left hand side, is that right?

'A. Yes, sir.'

It is undisputed that the appellee fell, and sustained injuries; that she was confined in a hospital, that she gave birth to a still-born child, and that she sustained financial loss and medical expenses. There is no contest insofar as accuracy of instructions presented in this case is concerned, save the failure of the lower court to grant a peremptory instruction to the appellant.

The briefs submitted by the attorneys representing both the appellant and appellee are very fine and detail most all of the Mississippi cases cited by this Court on questions relating to the negligence or nonnegligence of a municipality in the care and maintenance of its streets and sidewalks.

The basic question presented here for our consideration is simply whether the raised surface, or the projection of the east slab of concrete, where the separation occurred was of such a nature that danger therefrom might reasonably have been anticipated by appellant, and, thereby charge the appellant with negligence in permitting this dangerous disparity in height between the two blocks of concrete to exist. This is the same question which has been repeatedly considered in the numerous cases which have been brought in this State and reviewed by this Court. Perhaps the question can be phrased more clearly as follows: Could the City of Biloxi have...