City of Cleveland v. Threadgill

• Decision Date: 14 January 1963
• Docket Number: No. 42512,42512
• Citation: 246 Miss. 23,148 So.2d 670
• Parties: The CITY OF CLEVELAND, Mississippi v. Rosie Lee THREADGILL.
• Court: Mississippi Supreme Court

Page 670

148 So.2d 670

246 Miss. 23

The CITY OF CLEVELAND, Mississippi v. Rosie Lee THREADGILL.

No. 42512.

Supreme Court of Mississippi.

Jan. 14, 1963.

Valentine & Valentine, Cleveland, for appellant.

Alexander, Feduccia & Alexander, Cleveland, for appellee.

RODGERS, Justice.

This is a damage suit for personal injury to appellee, alleged to have resulted from negligent maintenance of a street in Cleveland, Mississippi.

Appellee, Rosie Lee Threadgill, filed suit in the County Court of Bolivar County, Mississippi. By agreement of the litigants, the county judge heard the case, sitting as judge and jury, and rendered judgment in favor of appellee. The case was appealed to the circuit court, where an order was entered affirming the judgment of the county court. It comes to this Court on appeal from the order of the circuit court.

The testimony revealed that early in the morning of June 22, 1960, appellee left her home on the south side of Ruby Street in the City of Cleveland, Mississippi, and walked across a paved sidewalk onto a paved street. The street is thirty feet wide and runs east and west in front of appellee's home. A water drain was built into the street near the south side within approximately twenty feet east of a point in front of the home. She walked out into the street in an easterly direction to call her husband and stepped on the cover of the water drain above-mentioned. The metal cover was defective in that two of the crossbars had been broken so as to leave a large hole in it. Appellee's foot and leg passed through this hole and became fastened to such an extent that she could not extricate herself. A woman aided appellee to get out of the water drain, and during the process of removing her leg from the defective iron grating, her back muscles were seriously strained. It was shown by testimony that she was totally disabled for six weeks and partially disabled for an additional six weeks; and that she was unable to pick and chop cotton or perform her household duties during this time. The attending physician, Dr. Milam, made a charge of $33 for his services. The county court entered judgment in favor of appellee for $400.

Appellants suggest on appeal that the trial court erred in granting a judgment against the City of Cleveland, because (1) The City owed no duty to maintain a drain in the bottom of a gutter in a safe condition for travel by pedestrians; (2) evidence with reference to the defective sidewalk was wholly unrelated to, and did not remotely constitute, a cause of the injuries; (3) appellee could not recover damages by reason of the defective sidewalk by seeking damages for stepping into a defective water drain; and (4) appellants did not have actual or constructive notice that the water drain shield was defective prior to the accident. We are of the opinion that the foregoing assignments of error were not well taken for reasons hereinafter set out.

Testimony for appellee was introduced to the effect that she 'always walked out in the street, and most other people do on account of that upside down block in the sidewalk.' Appellee was cross-examined in detail with reference to the defective sidewalk. For example, she was asked: 'You held your hands a long way apart to show how far the roots had pushed up the walk. Do you know how high that walk is there where the roots pushed it up? * * * Now, isn't it true, Rosie Lee, that that walk is pushed up higher on one side than it is on the other?' Mr. Brock, appellant's witness, testified that the sidewalk was broken within five feet of the water meter, and he was familiar with the point where the tree was located. We think this testimony was competent. It is obvious that this testimony was introduced for the purpose of showing the reason appellee chose to use the paved street, rather than the paved sidewalk, in front of her home.

In the case of Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42, appellant, in an effort to avoid an automobile collision, stepped into an uncovered concrete catch-basin, constructed and maintained by the Town of Lucedale as a part of the street system. The basin had been uncovered for more than four years. The trial court sustained a motion for a directed verdict. On appeal, this Court, in reversing the case, pointed out that 'The catch-basin here in question was not a remote cause. It was continuing, ever present; it was an open catch-basin into which an unwary pedestrian might stumble under many different circumstances. It was therefore present and continuing, contributing and concurring in the act of the driver of the automobile; and this would be true even if the concurring cause related back to the collision.'

In the construction and maintenance of streets and other public ways, the city is under a duty to exercise reasonable care, the standard of care being that of an ordinarily prudent person. It may be said that the measure of the duty of a municipality in reference to the maintenance of a public street and sidewalk is that it exercise reasonable and ordinary care to keep them in a reasonably safe condition for travel thereon by those who use them in the exercise of ordinary care. This rule has been recognized by this Court many times and reference is made to citations in the case of Hawkins v. City of Natchez, 242 Miss. 91, 133 So.2d 610. See also City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L.R.A.1916A, 482; Rahm v. Mayor, etc., of City of Vicksburg, 5 Cir., 255 F. 541 (1919); City of Jackson v. Clark, 152 Miss. 731, 118 So. 350; City of Natchez v. Shields, 74 Miss. 871, 21 So. 797.

Appellee cites the case of City of Greenville v. Williams, 213 Miss. 564, 57 So.2d 266, in which the testimony showed that a pedestrian stepped off the sidewalk and caught her heel in a crevice, two or three inches wide, next to a catch-basin maintained for storm sewerage, causing her to fall and break her arm. The contention of appellant in the case now before the Court is to the effect that, since appellee stepped off the sidewalk and onto Ruby Street, it is controlled by the case of City of Greenville v. Williams, supra, because in that case the pedestrian was also injured at a time when she stepped off the sidewalk. It will be observed that the case of City of Greenville v. Williams, supra, cited the case of City of Greenville v. Laury, 172 Miss. 118, 159 So. 121, and stated: 'Upon appeal this Court pointed out that under the evidence the depression or crevice was between one-half inch and three inches in width and between eighteen inches and two feet in length. The Court...