City of Meridian v. Crook

• Decision Date: 05 July 1915
• Docket Number: 16943
• Court: Mississippi Supreme Court
• Parties: CITY OF MERIDIAN v. CROOK

69 So. 182

109 Miss. 700

CITY OF MERIDIAN v. CROOK

No. 16943

Supreme Court of Mississippi

July 5, 1915

APPEAL from the circuit court of Landerdale county. HON. J. L BUCKLEY, Judge.

Suit by Mrs. L. Crook against the City of Meridian. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

Amis &amp Dunn, for appellant.

As we understand it, the measure of duty on the part of the city with reference to its highways, is to exercise ordinary care in keeping its streets in a reasonably safe condition for use by persons exercising ordinary care and prudence in passing over them. "28th Cyc. 1358, et seq: Vicksburg v Hennessy, 54 Miss. 391; Nesbitt v. Greenville, 69 Miss. 22; Butler v. Oxford, 69 Miss. 618; Walker v. Vicksburg, 71 Miss. 899; Union v. Heflin 61 So. 652." See, also, exhaustive note to case of Elam v. Mt. Sterling, 20 L. R. A. (New Series) at page 577, et seq.

It will be noted that the city is not an insurer against injury; nor is it liable for every accident that occurs in its streets. The degree of care required of a city is ordinary care and diligence, while the test of legal liability as to the condition of the street is, that it must be kept in a reasonably safe condition for use by persons exercising ordinary care in passing over them. Absolute safety of condition is not required; neither is reasonable safety of condition required, except when used in an ordinarily careful manner. In other words, the safety of condition is measured and modified by the matter of use. A condition that would be reasonably or even absolutely safe for use, by a prudent or careful traveler, would be dangerous for one who is reckless or careless; and so the duty of the city as to the condition in which it must keep its streets is, of necessity, modified and measured by the manner of the use thereof; and the courts have uniformly held that the condition of the street must be reasonably safe when used in an ordinarily prudent and careful manner. See authorities, supra.

If the foregoing be a statement of the law, then the granting of instruction number one for the plaintiff was error; because it excluded from the jury all the testimony of the plaintiff as to the manner of her use of the streets while passing over it at the time of her injury. In other words, the duty of the city is fulfilled, and it is not liable, even though the accident did happen, if the sidewalk was in a reasonably safe condition for use by a person exercising ordinary care in passing over it; and that was exactly the defense which the city sought to make. All the testimony of all the witnesses, both for plaintiff and defendant (except that of the plaintiff herself), showed, and tended to show, that the sidewalk in question was in a reasonably safe condition for use by a person exercising ordinary care in passing over it; and if that were true then the city is not liable even though the plaintiff did fall and was injured thereby.

It is true that no plea of contributory negligence was filed, and that contributory negligence is an affirmative defense which must be pleaded if the defendant desires to offer such proof. But then it is not necessary to plead it, when it is shown by the plaintiff's testimony, for the reason that, if at the time the plaintiff proves his cause of action he also proves a defense to it, no court would, for an instant, further entertain his claim or give judgment in his favor. Simms v. Forbes, 86 Miss. 421; Meyer v. King, 72 Miss. 1; Bowie v. Railway Co., 69 Miss. 196. We therefore submit that the granting of instruction number one for the plaintiff was such a fatal and harmful error as to require a reversal of the case.

The second instruction for plaintiff is also fatally erroneous. By this instruction the court charges the jury that even though they may believe from the evidence that there was no hole in the sidewalk, other than misplaced brick, yet if they further believe from the evidence that the sidewalk was unsafe for use, in its then condition, and that plaintiff by reason thereof was injured while exercising ordinary care, then the defendant is liable. The glaring errors in this instruction consists in telling the jury that if they believe from the evidence that the only defect in the sidewalk was misplaced brick, and if they further believe from the evidence that it was unsafe for use and that plaintiff was injured while exercising ordinary care, etc., then the defendant is liable.

In the first place there is no evidence in the record that the misplaced brick in the sidewalk rendered it unsafe. The only evidence of its unsafety is the fact of plaintiff's injury, which of itself is no proof of it, unless all other causal agencies be excluded, as was done by instruction number one for the plaintiff. But by taking instructions number one and number two together, it was equivalent to telling the jury that the defect caused the injury; and that therefore the sidewalk was dangerous or unsafe as a matter fact. In the second place, the word "unsafe" as used in the instruction is without qualification. All that is required of the jury as to the condition of the sidewalk, in order to return a verdict for the plaintiff, is to believe that the sidewalk was "unsafe." How unsafe? To what extent and in what degree? The word embraces all degrees from the slightest sort of unsafety, up to the highest degree of danger. And yet the jury were left to wander at will through all the degrees of unsafety without any guide, as to what degree of safety of the way, was required by law. It is true, that in the instructions for the defendant the court told the jury that it was the duty of the of the defendant to keep its sidewalks "in a reasonably safe condition for use by persons exercising ordinary care," but this did not inform them as to the degree of unsafety which would render the defendant liable, except by a process of legal reasoning, of which the average juror is incapable. And besides that, the defendant's instructions were all drawn and given on a theory which the jury could not possibly accept, if they regarded instruction number one for the plaintiff. And so the result necessarily was to require the jury to decide that if the sidewalk, by reason of the misplaced bricks, was even slightly unsafe for use in any manner, by prudent or by careless persons, and that the plaintiff was injured by reason of the defect, then the defendant was liable.

Again the instruction is erroneous, in submitting to the jury, the question as to whether or not the mere displacement of bricks in the sidewalk, rendered it unsafe for use by persons in the exercise of ordinary care. There was no testimony as to whether such defect would render the sidewalk unsafe for use or not; and all that the jury could do in such case would be simply to exercise their own judgment as to whether or not it was unsafe--and if so, to what extent or in what degree it was unsafe. We submit that the court should have instructed the jury that such an inequality of surface, as was caused by the mere displacement of the bricks in the sidewalk, was not such negligence on the part of the city as to render it liable, instead of telling them that any and all defects rendered it liable.

In the case of Messenger v. Bridgetown, 31 Can. S. C. 379, it is held, that a mound of earth about eight inches in height, allowed to remain at the filling over of a trench dug across a street to lay pipe, is not so serious or unusual an obstruction as to indicate negligence on the part of a municipal corporation.

In the case of Burrough v. Milwaukee, 110 Wis. 478, same case, 86 N.W. 159, it is held, that a depression in the surface of a street, not more than one and one-half inches deep at any point, into which a person, on alighting from a street car at a crossing fell and was injured, is not an actionable defect in the street, through it is at a point where a multitude of people are constantly getting on and off the cars.

In the case of Clifton v. Philadelphia, 217 Pa. 102, 9 L. R. A. (N. S.) 1266, 118 Am. St. Rep. 906, it is held that a municipal corporation is not negligent in permitting a slight rut to exist in a dirt road, caused by the wheels of heavy wagons slipping off the paving adjoining street car tracks laid therein, upon a grade of five to six inches higher than the dirt way, so as to render it liable for an injury caused to one falling because of such rut, in attempting to alight from a streetcar.

In the case of Dayton v. Glaser, 76 Ohio St. 471, 12 L. R. A. (N. S.) 916, it is held, that where a street had been paved with asphalt, and it had been worn and much broken in many places so that there were many holes from one to four inches in depth, some of them extending over three to four square feet of its surface; and that it had been for a long time in this condition and was much traveled daily, and no other accident had resulted from its use, the street may properly be regarded as in a reasonably safe condition; and the accident resulting therefrom will not be deemed the natural or probable result of using the street in that condition.

In the case of Indianapolis v. Cook, 99 Ind. 10, it is held, that where there are slight inequalities in sidewalks, and other trifling defects and obstructions, against which one may possibly strike his foot and fall, but if the injury might be avoided by the use of such care and caution as every reasonably careful and prudent person exercises, the city would not be liable.

In the case of Burns v. Bradford, 137 Pa. 361, 11 L. R. A 726, it is held that a slight deviation of the sidewalk from its original level, caused by the action of the frost in the winter or spring, is not such a...