City of Laurel v. Upton, 43523

• Decision Date: 31 May 1965
• Docket Number: No. 43523,43523
• Citation: 175 So.2d 621,253 Miss. 380
• Parties: CITY OF LAUREL, Mississippi et al. v. Mrs. Margie UPTON.
• Court: Mississippi Supreme Court

Page 621

175 So.2d 621

253 Miss. 380

CITY OF LAUREL, Mississippi et al. v. Mrs. Margie UPTON.

No. 43523.

Supreme Court of Mississippi.

May 31, 1965.

Brunini, Everett, Grantham & Quin, George P. Hewes, III, Jackson, Welch, Gibbes & Graves, Melvin, Melvin & Melvin, Deavours & Hilbun, Laurel, Daniel, Coker & Horton, John M. Roach, Jackson, for appellant.

Paul G. Swartzfager, William Harold Odom, F. B. Collins, Laurel, for appellee.

INZER, Justice:

Appellee, Mrs. Margie Upton, filed this suit in the Circuit Court of the Second Judicial District of Jones County against the City of Laurel, A. A. Bush, Contractor, Bush Construction Company, Inc., and United Gas Corporation. Her suit was predicated upon personal injuries alleged to have been sustained when she stepped in a ditch or excavation alleged to have been negligently left in an unsafe condition by defendants. A nonsuit was taken against Bush Construction Company, Inc., and it is no longer a party to this litigation. The jury returned a verdict of $84,583 against the remaining three defendants. A judgment was entered against defendants, and from this judgment they have appealed to this Court.

To avoid confusion, appellants will be referred to as follows: A. A. Bush, Contractor as Bush; United Gas Corporation as United; and City of Laurel as City.

The facts in this case show that as a result of the construction of U. S. Highway 59 through the city of Laurel, it was necessary for City to relocate certain water and sewerage lines. In 1957 City entered into a contract with Bush to relocate these water and sewerage lines, and in making such changes to make the necessary excavations in the streets and sidewalks, and upon completion to restore the streets and sidewalks to their former condition. In the latter part of October or the early part of November 1957, Bush opened the excavation or ditch here in question for the purpose of relocating an eight-inch water line. In order to do this work, it was necessary for Bush to remove a part of the paved portion of South Magnolia Street and also a portion of the sidewalk that was outside of the street curb. This ditch extended from the edge of the traveled portion of South Magnolia Street in a western direction. The ditch was from four to six feet wide, and about four feet deep at the point near the street. As the ditch extended westward, it narrowed to about two feet wide. In December 1957 United found that it was necessary, in order to increase the pressure on one of its gas lines located west of Magnolia Street, to lay a two and three-eighths inch line to connect with another one of its gas lines on the east side of Magnolia Street. It obtained permission from Bush to place its gas line in the ditch in which Bush had already placed the eight-inch water line. It was understood that after United placed its line in the ditch it would backfill the ditch. On December 10, 1957 United laid its line in the ditch, and the next day it filled the ditch by pushing mud and loose dirt into it. The dirt was not packed or tamped in the ditch. After this was done United left the area and never went back to do any further work relative to this ditch.

On February 21, 1958 appellee was walking south on the sidewalk along the west side of South Magnolia Street. When she came to the place where the sidewalk had been removed, she saw a place where it appeared people had been crossing the ditch or excavation. Cars were parked near the place where the sidewalk formerly was, and there was heavy traffic on Magnolia Street, which was used for southbound traffic for U. S. Highway 11. She was unfamiliar with the situation, and when she decided to attempt to cross the ditch where it appeared people had been crossing, she stepped on a place where the dirt had dried and formed a crust over the top of the ditch. When she put her weight on this place it gave way under her foot, causing her to fall forward, and she sank into the mud up to her waist. There were no barricades or signs to warn appellee that it was unsafe to cross the ditch. She was afraid to try to go around the ditch by getting out into the traveled portion of the highway because of the heavy traffic. She contends that she was severely and permanently injured as a result of her fall into the ditch.

Appellants have filed separate briefs, and each argues several points for reversal of this case. We will first discuss the points that they urge in common. The first contention is that the negligence of appellee was the sole proximate cause of her injuries. They argue that she did not use ordinary care in attempting to cross this ditch at the place she did, when she could have gone around the ditch by getting out into the street and walking a short distance. Appellee in her testimony, which is not contradicted, gave as her reason for not getting into the street to go around the ditch that the traffic was heavy and she was afraid she would be hit by a car. According to her testimony the place where she was attempting to cross appeared to be safe, and it was not until she placed her full weight upon her right foot that the surface gave way and caused her to fall. The defect was hidden from her. This Court has long since laid to rest this contention. We said in the case of City of Pascagoula v. Kirkwood, 86 Miss. 630, 38 So. 547 (1905), that:

'Every city rests under the legal obligation to maintain its sidewalks in a reasonably safe condition for the use of pedestrians. This obligation rests as well for passage by night as by day. The pedestrian is entitled to use the sidewalks at any time, and may at all times rely on the mandate of the law which imposes upon the municipality the burden of exercising a reasonable diligence in the construction and maintenance of its sidewalks, and makes it responsible for all damages resulting from any default in the observance of this duty. A pedestrian is not required by law to leave the sidewalk and go out into the street under conditions such as surround the scene of the accident in the instant case, and risk the danger of passing electric cars or chance vehicles, in order to avoid a defective sidewalk which the city has negligently permitted to continue in a dangerous condition after notice of the existence of the defect. It is true that knowledge of the unsafe condition demands an additional degree of care by the pedestrian, commensurate with the danger of the situation; but the testimony of the appellee, which is in no wise discredited, and which bears the impress of perfect truth, shows that she discharged this duty of extra care, and that the injury was solely attributable to the negligence of the city.' (38 So. at 547-548)

We are of the opinion that the question of whether appellee used reasonable care for her own safety was a question for the jury. The trial judge properly submitted this issue to the jury under proper instructions. Hawkins v. City of Natchez, 242 Miss. 91, 133 So.2d 610 (1961); City of Hattiesburg v. Kelly, 226 Miss. 529, 84 So.2d 680 (1956); City of Meridian v. Akin, 193 Miss. 505, 10 So.2d 194 (1942); Bird-song v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827 (1941); Saxon v. Town of Houlka, 107 Miss. 161, 65 So. 124 (1914); City of Jackson v. Carver, 82 Miss. 583, 35 So. 157 (1903).

Appellants urge also that the trial court was in error in refusing to allow appellants to introduce a letter signed by Dr. Bass, after Dr. E. J. Holder had testified on behalf of appellee that his medical opinion was based in part on this letter. Dr. Holder is an orthopedic surgeon who has been practicing medicine for twenty-five years, and who for the past four years has been associated with Dr. James C. Bass in the operation of the Laurel Bone and Joint Clinic. Dr. Holder was the only doctor who testified on behalf of appellee. He said that he first saw appellee on July 29, 1963. She was referred to him by Dr. Ruffin, a practicing physician in the City of Laurel. At that time she was complaining of low back pain and pain in her right leg. He had x rays made at that time, but they did not show any bone damage. He found that she had limitation of motion in her back because of pain, muscle tightness, and muscle spasms. He made a stretch test, and the result was positive on the right side. He said that appellee gave him a history of her injuries and past treatment by other doctors. The court sustained an objection to the doctor repeating statements made to him by appellee relative to treatment by other doctors. Dr. Holder also ran a myelogram test on appellee. He found no conclusive evidence of disc damage, but found suggestion of such damage. He stated that in about fifteen percent of the cases where myelogram test results are negative, further exploration reveals disc protrusions do exist. He recommended to appellee that she have an exploratory operation. It was his idea that if no protrusion of the disc was found, she should have a fusion of the spine to limit motion in the joint that was giving her trouble. He said that this does not always eliminate the pain. He also found that appellee had atrophy of the calf of the right leg. This indicated a limitation of the motion of the leg which caused the muscles of the leg to dry up. His diagnosis was that appellee had nerve root pressure at vertebrae L-5 interspace on the right from a probable disc protrusion. It was his opinion that appellee is unable to do the type of work that she was doing prior to her injury. He prescribed that she wear a brace, or corset, which she was wearing at the time of the trial. Upon cross-examination it was developed that Dr. Holder, in arriving at his opinion, had considered the reports, letters and opinion of Dr. James C. Bass. He had these reports and letters with him in his file. Appellant sought to introduce into evidence the report of Dr. Bass and sought to cross-examine Dr. Holder relative to that report. The trial court sustained an objection to...