City of Greenville v. Middleton

• Decision Date: 24 January 1921
• Docket Number: 21486
• Citation: 86 So. 804,124 Miss. 310
• Court: Mississippi Supreme Court
• Parties: CITY OF GREENVILLE v. MIDDLETON

86 So. 804

124 Miss. 310

CITY OF GREENVILLE v. MIDDLETON

No. 21486

Supreme Court of Mississippi

January 24, 1921

APPEAL from circuit court of Washington county, HON. H. H. ELMORE Judge.

1. MUNICIPAL, CORPORATIONS. Constructive notice of defect in street attributable to city question of fact.

Whether constructive notice of a defect in a street shall be attributed to municipal authorities is ordinarily a question for the jury to determine from the length of time the defect has existed, the nature or character thereof, the publicity of the place where it exists, the amount of travel over the street, and any other facts or circumstances in evidence which tend to show notoriety, and from which they may conclude that by the exercise of ordinary and reasonable care and diligence the defect should have been discovered by the corporate authorities.

2 DAMAGES. $5,000 held not excessive for injury to lifelong cripple. Evidence examined, and $5,000 adjudged not to be excessive recovery.

HON. H H. ELMORE, Judge.

Action by J. T. Middleton against the City of Greenville. Judgment for plaintiff, and defendant appeals. Affirmed.

Cause affirmed.

Humphreys & Anderson, for appellant.

The appellant contends that the court erred in refusing the peremptory instruction for the defendant because the evidence failed to show any negligence in the city of Greenville.

And further, that the verdict is contrary to the evidence. And even if the appellant was negligent, that the amount of the verdict is grossly in excess of the damages sustained by the appellee. McQuillin on Municipal Corporations, par. 2724.

There being no actual notice, constructive notice imputed knowledge of the defective condition of the street, in this case the broken bridge before the accident must be shown, and time after such notice to put the street in a reasonably safe condition, in this case, time to repair the bridge. Of course, that time after the notice must be a reasonable time.

Since the lapse of time from the origin of the defect in the street to the time of the accident is the principal element of constructive notice, the court will observe that two periods of reasonable time must pass between the origin of the defect, the braking of the bridge on Thursday afternoon, and the time of the accident, and the stumbling of the pony on the following Monday night, four days later, before the appellant can be held liable. First, sufficient time must have elapsed from the breaking of the bridge to the time of the accident to show that ignorance of the broken bridge on the part of the city is not compatiable with reason except on the assumption of failure to exercise reasonable care. Second, after the passing of that time, the attaching of the knowledge of defect, another period of reasonable time must pass during which the city may repair the defect.

In determining what is a reasonable time before knowledge of the defect can be imputed to the city and after the imputation of that knowledge, time within which the city may repair the defect, the court should consider the locality of the street with reference to the traffic that goes attendant upon it. Of course knowledge would and should be imputed to the city in a much shorter time if a defect of this nature existed upon one of the main thoroughfares of the city, than where, as in this case, it was off on a side street, far from the business center of the town, and seldom used for traffic. Kunz v. City of Troy (N. Y.), Reported in 10 N.E. 442; Vicksburg v. Hennessy, 54 Miss. 392; Nesbitt v. Greenville, 69 Miss. 22; Cohea v. Coffeeville, 69 Miss. 561 Butler v. Oxford, 69 Miss. 618; Walker v. Vicksburg, 71 Miss. 899, 15 So. 132; Town of Union v. Heflin, 104 Miss. 659, 61 So. 652; Whitfield v. Meridian, 66 Miss. 570; Natchez v. Lewis, 43 So. 471; Saxon v. Houlka, 65 So. 124; Meridian v. Crook, 69 So. 182; Higginbottom v. Village of Burnsville, 74 So. 133; Jackson v. Carper, 35 So. 157; Greenwood v. Harris, 42 So. 538; Birdsong v. Mendenhall, 52 So. 795; City of Pascagoula v. Kirkwood, 38 So. 547; Stainback v. Meridian; Pomes v. McComb City, 83 So. 636; City of Hazelhurst v. Shows, 74 So. 122; Parson v. Manchester, 27 A. 88; Cutter v. Demoines, 113 N.W. 1080; Monticello v. Kenard, (Ind.) 34 N.E. 454; Naylor v. Mountain Stone Co. and Salt Lake City, 35 P. 509; Ft. Wayne v. Duryee, 37 N.E. 299; Palestine v. Hassel, (Texas), 40 S.W. 147; Brennan v. New York, 114 N.Y.S. 578, 130 A.D. 267; Corey v. Ann Arbor, 134 Mich. 376, 96 N.W. 477.

It seems to us that a verdict of five thousand dollars even if the appellant were negligent, is grossly excessive. We do not care to burden the court with an argument on the contention that the verdict is contrary to the evidence. The record speaks for itself.

We submit the case upon the authorities quoted and upon the record.

Percy Bell, for appellee.

The questions of law in this case are really two in number, first, whether the cause should have been submitted to the jury on the question of whether or not sufficient time had elapsed between the breaking of the bridge and the accident to constitute constructive notice; and, second, whether the verdict is excessive. We shall consider these in this order.

Should the case have been submitted to the jury? We submit that the court below did the right and proper thing in submitting the case to the jury on the question of constructive notice as well as the amount of damage. Our own state has announced and generally accepted the rule that each case of constructive notice must stand upon its own facts and circumstances and is a matter addressing itself almost entirely to the discretion of the trial judge and except in cases where it was manifestly unjust or absurd to impute knowledge because of the shortness of time, the courts have upheld the submission of constructive notice to the jury as a fact for the jury to decide. The authorities are almost uniform in holding that it is a question of fact for the jury and we submit that in the few cases where the court held that the cases should not have been submitted to the jury, that it was manifestly absurd or unjust to so submit them.

Surely no one can contend in the instant case that a period of four days was not sufficient time for knowledge of the defect, during all of which time this bridge was broken in a thickly populated part of Greenville, one block from the leading school and leading negro thoroughfare (Nelson street) and on another leading thoroughfare (Theobald street) and during which time on the Sunday preceding this accident there had been another accident, the witness, W. W. Lindsay, having had a similar accident, from which he fortunately escaped without injury, especially when we take into consideration the fact that the city of Greenville employed a street supervisor and in addition thereto, a man whose business it was to look after the wooden bridges similar to this in the city. Surely four days was sufficient time for this man to have discovered this broken bridge and to have repaired it or stuck a flag in it warning of the danger, and the jury, we submit, was entirely right in finding that the city had had sufficient time to constitute constructive notice.

Many of the cases cited by counsel for appellant in his brief are not in point, either by reason of there being no question of constructive notice, of the defects being latent, or located outside the traveled roadway, or there being other agents, as on account of someone letting a hydrant run and thereby producing freezing water on the pavement, but we submit that no case and authority cited by the appellant is sufficient to show that the trial judge erred in submitting this case to the jury.

In the case of Butler v. Oxford, the defect existed for only two hours. In the case of Town of Union v. Heflin, the defect existed for less than a day. Counsel relies very largely upon the case of City of HazelHurst v. Shows, 74 So. 122. In this case the obstruction was entirely off the roadway, was certainly not there by reason of any neglect of the city, and the person injured had been over the road many times. In the instant case the defect was a part of the roadway and Mr. Middleton had not been over the road before. Record page 19.

We have no quarrel with the authorities quoted by counsel from other states because they are all in line with the rule announced by McQuillin and stated at the beginning of this brief; each case stands on its own facts. We will, however, pause to notice the case of Corey v. Ann Arbor, 134 Mich 376, as in this case the injury was caused by a deposit of ice upon the sidewalk, the water which froze flowing from the hydrant of the adjacent owner, a very different matter from the case at bar. McQuillan on Municipal Corporations, volume 6; 28 Cyc., page 1388 et seq., 28 Cyc., page 1507; Cutler v. Desmoines, 113 N.W. 1081; ...