City of Jackson v. Lewis

• Decision Date: 19 April 1926
• Docket Number: 25663
• Citation: 142 Miss. 806,108 So. 156
• Court: Mississippi Supreme Court
• Parties: CITY OF JACKSON v. LEWIS. [*]

108 So. 156

142 Miss. 806

CITY OF JACKSON v. LEWIS. ^[*]

No. 25663

Supreme Court of Mississippi

April 19, 1926

Division B

1. MUNICIPAL CORPORATIONS. Whether street at place of injury caused when horse stepped, into refilled ditch, was in reasonably safe condition held for jury.

In action against city for injuries received resulting to plaintiff when horse he was driving stepped into refilled ditch in street, evidence held, sufficient relative to whether street was in reasonably safe condition to preclude directing verdict for city.

2 TRIAL. Instruction that city is required to keep streets in good repair, although incorrect, in that city is only required to keep streets in reasonably safe condition, held not misleading, when construed with other instructions to that effect.

Instruction that city is charged with keeping streets in good repair although subject to criticism, in that city is only required to keep streets in reasonably safe condition, held not mislead-leading, when construed with other instructions outlining such requirement correctly.

3. APPEAL AND ERROR. Instruction that city was liable for defective condition of street, if it could have been ascertained by city or any of its agents, although erroneous as charging city is bound by knowledge of its agents, held harmless, where evidence showed city inspector had actual knowledge of conditions where injury occurred.

Instruction that city was liable if it or any of its agents could have ascertained defective condition of street, although erroneous in charging that city was bound by knowledge acquired by agents, held harmless, in view of fact that evidence showed without conflict that city inspector had actual knowledge of how water main and sewer ditches, where injury occurred, had been filled, eliminating question of notice to city.

4. APPEAL AND ERROR. Objection of variance between declaration and proof raised on motion for new trial was too late (Code 1906, section 808 [Hemingway's Code, section 596]).

Under Code 1906, section 808 (Hemingway's Code, section 596), objection of variance between declaration and evidence, raised for first time on motion for new trial, was too late.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Action by Turner Lewis against the city of Jackson. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Morse & Scott, for appellant.

I. The court should have directed a verdict in favor of the city of Jackson. The duty and consequent liability of a municipality to keep its streets and sidewalks in a reasonably safe condition for persons traveling thereon extends to those cases where the obstruction or unsafe condition of the street is brought about by persons other than the agents of the city. In such cases the basis of the action being negligence, it devolves upon the plaintiff to show that the city had notice of the defect or might have had knowledge thereof by the use of reasonable care and watchfulness. See 28 Cyc. 1353; Hattiesburg v. Reynolds, 86 So. 853.

The testimony of Nash, who was a witness for the plaintiff, and the testimony of Williams, also a witness for the plaintiff, was to the effect that a ditch had been dug from June 25-28, but that this ditch was in good condition and the ground had been thoroughly tamped back.

The only theory on which plaintiff could recover is the theory of G. W. Ransom that the ditch was not properly filled. By taking into consideration that Ransom was positive that the ditch was constructed and filled the same day that Turner Lewis fell into it, we would say that the plaintiff failed to bring home to the city of Jackson any responsibility for this action. There is no presumption of negligence arising from the happening of an accident by catching the foot in a sidewalk plank, as in Union v. Heflin, 104 Miss. 669, 61 So. 652.

II. The court erred in giving instructions No. 1 and No. 2 for the plaintiff. The first instruction announces the wrong principle of law. It states that the city is charged under the law with keeping its streets in good repair and free from any defects. Municipal corporations, not being insurers of the safety of those who use their streets, are required only to make them reasonably safe for persons of ordinary prudence. See Vicksburg v. Hennessy, 54 Miss. 391; Nesbith v. Greenville, 69 Miss. 22, 10 So. 452; Butler v. Oxford, 69 Miss. 618, 13 So. 629; Meridian v. Crook, 109 Miss. 700, 69 So. 182; Higgensbottom v. Brunsville, 113 Miss. 219, 74 So. 133; Addkinson v. Dekatur, 131 Miss. 707, 75 So. 689; McComb v. Hyman, 124 Miss. 252, 87 So. 11. The second instruction is defective in that it is incomplete.

Chas W. Crisler and John Crisler, for appellee.

The first assignment of error is that the court erred in failing to direct a verdict in favor of the city of Jackson. Under what known principle of law or fact appellant bases this contention is a mystery to us.

Carver v. Jackson, 82 Miss. 583, 35 So. 157, lays down the rule: "Where defects in a street were created by the city itself in the prosecution of a public work, and ordinary care would have discovered these defects, the city is chargeable with notice of them." The first assignment is, therefore, entirely without merit.

The next assignment of error discussed in the brief of the appellant is to the effect that the court erred in giving instructions Nos. 1 and 2 to the plaintiff. Instruction No. 1 was predicated on the negligence of the city employees in failing to refill properly and tamp or pack the dirt in the water ditch; and if there is anything misleading about this instruction, we fail to find its significance. Appellant says, however, that the jury was mislead by this instruction for the reason that it is based on the hypothesis that the city of Jackson itself constructed the ditch. Appellant says further that even if the city had constructed the ditch, the instruction would be wrong as it announces the wrong principle of law. As stated, this instruction was asked for the very purpose of covering the probability of the plaintiff's having been injured by the unsafe condition of the ditch that was dug by the city of Jackson. Carver v. Jackson, supra. See, also, Nesbitt v. City of Jackson, 69 Miss. 22, 10 So. 452.

The city is liable for defects and it was its duty to watch the ditch to ascertain the condition of the refilled dirt so as to prevent it from becoming unsafe. Elliott on Roads and Streets, 645; 55 Mich. 552; Donoho v. Vulcan Iron Works, 75 Mo. 402.

If by reasonable care the city could have ascertained the unsafe conditions of the ditch, it was liable, although persons passing might not have observed the defects. 89 Mo. 226; 16 Kan. 338; 72 Ind. 196; Vicksburg v. McClain, 67 Miss. 4. In this connection see, also, Whitfield v. City of Meridian, 66 Miss. 570, 6 So. 244, 14 Am. St. 596, 4 L. R. A. 834; City of Natchez v. Shields, 74 Miss. 871, 21 So. 789 and the following cases cited with approval by counsel for appellant: Meridian v. Crook, 109 Miss. 700, 69 So. 182; McComb v. Hyman, 124 Miss. 252, 87 So. 11; Higginbottom v. Burnsville, 113 Miss. 219, 74 So. 135; Fuel v. Meridian, 90 Miss. 380, 42 So. 438, 9 L. R. A. (N. S.) 775.

Instruction No. 2, complained of by appellant, was given by the court to cover the situation in case injury was sustained because of the ditch dug by Nash and charges the correct principle of law in that "it is not necessary for the city to have actual notice of the defect in the street due to a sewer ditch being dug (this ditch having been dug in this instance for another party under permit from the city), but if the jury believing from a preponderance of the evidence that the defendant, or any of its agents, could have ascertained its defective condition, if by the exercise of reasonable care, etc.," then the city is liable. Miss. Cent. R. R. Co. v. Lott, 118 Miss. 816, 80 So. 277; Godfrey v. Meridian Ry. & Light Co., 101 Miss. 565, 58 So. 534.

There is absolutely nothing in this record justifying a reversal of this case, as unquestionably it was a question of fact for the determination of the jury, and was presented to the jury under proper charges from the court.

Argued orally by W. E. Morse, for appellant.

OPINION

ANDERSON, J.

Appellee, Turner Lewis, brought this action in the first district of the circuit court of Hinds county against appellant (which, for convenience, will be referred to as the city) for damages for a personal injury received by him while driving along one of the city's streets, which injury he alleged was caused by the defective and unsafe condition of the street. There was a trial and verdict and judgment for appellee in the sum of two hundred dollars from which the city prosecutes this appeal.

Wood street is one of the streets of the city running north and south. A water main ditch had been dug nearly across Wood street from the east side. This ditch was something like fifteen inches wide and eighteen inches deep. A sewer ditch had been dug from the west side of Wood street to about the middle of the street, where it met and probably overlapped the water main ditch. The sewer ditch was something like two feet wide and five feet deep. A water main was laid in the ditch dug for that purpose, and a sewer was laid in the ditch dug for that purpose. The water main ditch was dug by the city itself. The sewer ditch was dug by a plumber, Nash, who had a permit from the city to do the work. After the ditches were dug and the water main and sewer pipe were laid, the ditches were refilled with dirt which had been taken therefrom in the process of their digging. After being refilled, the ditches had the appearance of being in good condition. There was nothing to...