City of Jackson v. Locklar

Decision Date04 May 1983
Docket NumberNo. 53674,53674
Citation431 So.2d 475
PartiesCITY OF JACKSON, Mississippi v. Don K. LOCKLAR.
CourtMississippi Supreme Court

Gay Dawn Horne, Eugene C. Stone, Jackson, for appellant.

Malouf & Malouf, Robert A. Malouf, Jackson, for appellee.


ROBERTSON, Justice, for the court:


On December 13, 1980, Don K. Locklar and his automobile encountered a defective and negligently maintained water system manhole cylinder at the intersection of Louisiana Street and Virginia Street in the City of Jackson. He suffered painful and disabling personal injuries, as well as property damage.

On February 19, 1981, Locklar, the plaintiff below and appellee here, filed this action in the Circuit Court of the First Judicial District of Hinds County, Mississippi. Locklar named the City of Jackson, Mississippi, appellant here, as the sole defendant. He charged that the City of Jackson had negligently maintained its streets and, particularly, that it had allowed to exist a dangerous and defective condition at the intersection of Virginia Street and Louisiana Street. The jury returned a verdict for Locklar and assessed his damages at $27,000.00.

The City of Jackson then timely filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, or, in the alternative, for a remittitur. Upon denial of these motions, the City of Jackson has perfected this appeal.


We will summarize the facts of this case. Because of the jury's verdict in favor of Locklar, we will resolve all conflicts in the evidence in his favor. We will also draw in Locklar's favor all reasonable inferences which flow from the testimony given.

On the evening of December 13, 1980, yuletide merriment was Locklar's chosen fare. He joined several friends at the Scotch Maid Lounge in Jackson. All enjoyed several hours of reminiscing and revelry. The spirit of the season led him to partake of other spirits. Still, there is no evidence that Locklar was drunk or substantially intoxicated when he parted company with his friends near 10:00 o'clock.

On the way home, Locklar had his unfortunate encounter with a street in Jackson. He was proceeding in an easterly direction on Virginia Street. At the intersection of Virginia and Louisiana Streets, Locklar stopped for the stop sign controlling eastbound traffic. He began to enter the intersection. An instant later Locklar's automobile came to a jolting halt. He was thrown against the steering wheel and windshield. A protruding manhole cylinder was the culprit.

The manhole cylinder is on the west side of the intersection of Virginia and Louisiana. It is in the center of Virginia Street. One approaching from the west (as Locklar was) encounters a slight dip in the road before reaching the manhole cylinder.

The evidence was uncontradicted that the cylinder protruded above the asphalt surface of the street. The only question was how high. Locklar, who checked it the next day, said that the protrusion was approximately five inches. Tracy Davis, who drove the wrecker that towed Locklar's car in, said it was about three inches high. Dawn Sutton, who lived near the intersection of Louisiana and Virginia, said the cylinder was protruding above the level of the street about three or four inches. Joyce Kennedy, who also lives in the area, set the protrusion as between two to three inches on the night in question.

Locklar's theory, which was necessarily accepted by the jury, was that the front end of his car dipped immediately before reaching the manhole cover. Either his front bumper or the front cross-member of his 1975 Ford encountered the fixed, immovable manhole cylinder. The immovable object easily thwarted the substantial but, as it turned out, not irresistible force. As a result of the impact, Locklar's automobile sustained a seriously bent frame and was a total loss. No other explanation for what happened to Locklar and his automobile was seriously offered. 1

The critical issue at trial was whether the City knew of the condition of the manhole cylinder and the danger it posed. Dawn Sutton, who, as indicated above, lives at the intersection of Louisiana and Virginia, gave the history. She covered a period of approximately two and one-half years before this accident. Sutton recalled quite a few vehicles having come into contact with the manhole, often several a week.

Joyce Kennedy had lived in the neighborhood since 1975. She testified that she hit the manhole in June of 1980 and damaged her car. She reported this incident to the City. She also confirmed that on not infrequent occasions other cars would strike the manhole.

Jessie Jones lives two houses from the intersection. She, too, recalled five or six automobiles striking the protruding manhole before Locklar's pre-Christmas encounter.

The City offered testimony that it had no record of a report of any dangerous or defective condition at the intersection of Louisiana and Virginia Streets. The City also offered testimony of a maintenance worker to the effect that he was familiar with the area and was aware of no danger.

In the present setting the evidence was more than sufficient to establish that the manhole cylinder was protruding at a dangerous level. The City of Jackson either had knowledge of this or had more than reasonable opportunity, if it were diligent in the maintenance of its streets, to obtain such knowledge.


We are here called upon to review a verdict returned by a duly empaneled and sworn jury. The scope of our review in this context is well settled in this state. In General Tire and Rubber Co. v. Darnell, 221 So.2d 104 (Miss.1969), this Court held that

"When the court considers whether the defendant is entitled to a judgment as a matter of law, the court should consider the evidence in the light most favorable to plaintiff, disregard any evidence on the part of defendant in conflict with that favorable to plaintiff, and if the evidence and reasonable inference to be drawn therefrom would support a verdict for plaintiff, the jury verdict should not be disturbed." 221 So.2d at 105.

This rule has been reaffirmed in Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975) and in many cases decided since.

On a motion for judgment notwithstanding the verdict, the trial court must consider all of the evidence--not just that evidence which supports the non-movant's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable men could not have arrived at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the jury's verdict allowed to stand.

It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Some guesswork and speculation are necessarily involved in practically all jury verdicts, including those no one would dream of suggesting be disturbed.

These standards, of course, derive from many decisions of this Court. Beyond that, the limited power of the trial court to review a jury's verdict is a function of constitutional mandate. Miss. Const. (1890) Art. 3, Sec. 31. The rules applied here find further undergirding in an enactment of the legislature. Miss.Code Ann. Sec. 11-7-17 (1972). Even without these constitutional and statutory considerations, the familiar rules stated above would necessarily evolve as a matter of institutional necessity.

We emphasize that our powers on appellate review are even more restricted. Our institutional role mandates substantial deference to the jury's findings of fact and to the trial judge's determination whether a jury issue was tendered. When a verdict is challenged via appeal from denial of a motion for j.n.o.v., we have before us the same record the trial judge had. We see the testimony the trial judge heard. We do not, however, observe the manner and demeanor of the witnesses. We do not smell the smoke of the battle. Cf. Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983). The trial judge's determination whether, under the standards articulated above, a jury issue has been presented, must per force be given great respect here.

That Don Locklar failed to show exactly how the manhole cylinder "stopped" his car profits the City of Jackson nothing. The substantial evidence that the manhole cylinder did protrude some number of inches above the street surface, that Locklar's car obviously encountered some substantial fixed object, that his car was found stopped over the manhole cover, are certainly sufficient to have allowed the jury to infer reasonably that the protruding manhole cylinder was the cause of this accident.

The trial judge held that Locklar had tendered sufficient evidence to support the jury's verdict on this issue. Similarly, the trial judge held that a jury issue had been tendered on the question of the City of Jackson's actual or constructive notice of the defective or dangerous condition. The trial judge necessarily held that, under the principles reviewed above, he was without power to disturb the verdict of the jury. 2


No resort to Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), is necessary to establish the proposition that a municipal corporation in this state may be liable in tort to persons injured by dangerous or defective conditions on the...

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