City of Meridian v. Moody

• Decision Date: 27 February 1939
• Docket Number: 33508
• Citation: 186 So. 649,185 Miss. 340
• Court: Mississippi Supreme Court
• Parties: CITY OF MERIDIAN v. MOODY

186 So. 649

185 Miss. 340

CITY OF MERIDIAN v. MOODY

No. 33508

Supreme Court of Mississippi, Division B

February 27, 1939

APPEAL from the circuit court of Lauderdale county HON. ARTHUR G BUSBY, Judge.

Personal injury action by Mrs. Claudia Moody against the City of Meridian. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.

Reversed and remanded.

Howard Westbrook, of Meridian, for appellant.

The lower court erred in admitting testimony by the appellee relative to the character of barricades, or the presence of guards thereat, subsequent to the accident of the appellee.

With an accident having occurred on a street or sidewalk what steps may have been taken subsequent to such accident are neither admissions of guilt nor any standard by which the conduct of a reasonably prudent person exercising reasonable care under circumstances and conditions entirely different prior thereto.

43 C J. 1260, sec. 2024; Holman v. Orangeburg, 118 S.C 361, 110 S.E. 674; 43 C. J. 1264, sec. 2029; Miss. Central R. R. Co. v. Miller, 40 Miss. 45; Southern Railroad Co. v. Kendricks, 40 Miss. 374, 90 Am. Dec. 332; Tribette v. I. C. R. R. Co., 13 So. 899, 71 Miss. 212.

The lower court erred in excluding evidence offered by the appellant relative to its experience with other barricades and the necessity for the barricade in question.

Graves v. Johnson, 176 So. 256; Graves v. Hamilton, 177 So. 360.

The court erred in failing to permit a view of the premises.

Great Atlantic & Pacific Tea Co. v. Davis, 177 Miss. 562, 171 So. 550.

There was error in the giving and refusing of instructions.

This court held in the case of Thomas v. City of Lexington, 168 Miss. 107, 150 So. 816, that as a general rule the question to whether or not signals or warnings against existing defects in a street are sufficient is one to be determined by the jury.

Again in the recent case of the City of Hazelhurst v. Matthews, 180 Miss. 42, 176 So. 384, this court held that whether or not a defect or obstruction in a street is one that the municipality in the exercise of ordinary care could have reasonably foreseen would result in injury is a question for the jury.

There was proof in the record that there was no other warning on the rope, and there was proof that there was a sack and a piece of cardboard attached to it, but if the jury had believed that there was no warning attached to the rope, we respectfully maintain that it would still have been an issue for the jury to determine whether or not the barrier was sufficient, because of the testimony of the witnesses as to the distance of visibility of the rope itself.

McQuillin Municipal Corporations, sec. 2993; Norwood v. Somerville, 159 Mass. 105, 33 N.E. 1108.

It must be remembered that in this case the city was exercising its legal right to close a portion of 23rd Avenue, while repair work was going on. There can be no question of this inherent right of the city so to close a portion of the street, as municipality is given full jurisdiction over its streets and avenues.

Sec. 2414, Code of 1930; McQuillin Municipal Corporations (2 Ed.), sec. 2992; Holliday v. Athens, 10 Ga.App. 709, 74 S.E. 67.

Yet, notwithstanding the character of the rope, the location of the street, kind of day, the visibility afforded, the tree across the road and all other facts and circumstances which surrounded the plaintiff, an instruction took away from the jury the question of the sufficiency of the rope itself as a barrier and told them that there should have to be some vague, indefinite warning characterized as "proper" in addition to the rope, otherwise, it would constitute an unreasonable and dangerous obstruction.

It was the appellee's opinion that red flags were necessary and the jury were told under this instruction that if they believe the placing of red flags on the rope would have been a warning to the plaintiff, then the city was obligated to put red flags on the rope or some other adequate warning.

McQuillin Municipal Corporations (2 Ed.), sec. 2992.

From a comparison of the instructions granted the parties in this cause, it is obvious that two wholly inconsistent statements of law were given. On the one hand the jury was told for the appellee that the rope was not sufficient warning in itself, but in addition thereto there should have been additional warning, while for the appellant the jury was told that it was the city's duty to erect and maintain a reasonably sufficient barrier which would reasonably warn the traveling public in the exercise of due care that the street had been closed. These instructions are not capable of being harmonized and this court has repeatedly held that where there is a conflict in the instructions that the cause should be reversed.

Herndon v. Henderson, 41 Miss. 584; Soloman v. City Compress Co., 69 Miss. 319, 12 So. 339; Kansas City M. & B. R. Co. v. Lilly, 8 So. 644; I. C. R. R. Co. v. McGowan, 46 So. 55, 92 Miss. 603; Y. & M. V. R. R. Co. v. Cornelius, 95 So. 90, 131 Miss. 37; Hinds v. Lockhart, 105 So. 449.

Jacobson & Snow, of Meridian, and Butler & Snow, of Jackson, for appellee.

The only excuse which the defendant offered in defense of its actions was that when the rope was stretched across the avenue, some object was placed thereon.

The sole and only other defense offered by the City of Meridian is that witnesses were placed on the witness stand who stated that before Mrs. Moody met her unfortunate accident they had come down the avenue proceeding as she was proceeding and had seen the rope stretched across the avenue.

This was no defense whatever, as had Mrs. Moody not been keeping a proper lookout, and there is no intimation in the record that she was not, she would have been guilty only of contributory negligence and this issue was submitted to the jury in one of defendant's numerous instructions.

McWhorter v. Draughn, 134 Miss. 247, 98 So. 597; City of Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713; McWhorter v. Draughn, 137 Miss. 515, 102 So. 567.

To have permitted an inspection of the premises would have been error. We cannot believe that counsel is serious in urging this assignment. There was nothing involved except a street in the City of Meridian where a rope had been tied across the street from one side to the other. A map was introduced prepared by the city engineer which showed the street in detail. It showed every tree on the street and the size of the trees. That trees with foliage thereon which obscures the sun make shade is a matter of such common knowledge as to not warrant discussion. As we understand the rule, it is only in special cases that a view of the premises is justified. Certainly, this is no such case, and, certainly, the failure of the court to permit a view of the premises was not error.

Great Atlantic & Pacific Tea Co. v. Davis, 177 Miss. 562, 171 So. 550.

The court below in its instructions simply announced the rule as announced by this court in McWhorter v. Draughn, 134 Miss. 247, 98 So. 597; Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713; McWhorter v. Draughn, 137 Miss. 515, 102 So. 567; and Graves v. Johnson, 179 Miss. 465, 176 So. 256.

The court held as a matter of law that to stretch a small, dark rope such as was involved here across a much traveled, paved street in a populous city, completely enshrouded in the shade and shadow of overhanging trees was negligence, and we submit under the above authorities and upon sound reason and justice rightfully so held.

Appellant says that the plaintiff's instructions are in conflict with some of the thirty-four given instructions at the request of the defendant, the appellant. We submit that this is not true. And if it be true in some isolated instance, it is because in some of the vast number of instructions given at the request of the defendant in the court below, appellant here, the court simply announced the rule of law at the instance of the defendant, the appellant here, which was too liberal to the defendant and gave to the defendant the benefit of a more favorable presentment of its case than it was entitled to receive.

The appellant here cannot be heard to complain of technical errors in the admission or the exclusion of evidence, if such error exists, or cannot be heard to complain of technical error in instructions granted at the request of appellee, or of error of the court in the refusal of instructions requested by appellant, for the reason that, under the facts and the proof in this case, appellee should have been granted a directed verdict against the appellant, defendant in the court below, on liability, and, in any event, the jury in rendering a verdict in this case in favor of the appellee, the plaintiff in the court below, and against the appellant, the defendant in the court below, returned the only verdict which could have been rightfully returned under the evidence and the facts in this cause.

Williams v. McLain, 176 So. 717; Murray Chevrolet Co. v. Cotton, 169 Miss. 521, 152 So. 657; Whitley v. Holmes, 164 Miss. 423, 144 So. 48; Hale v. Hinkle Mercantile Co., 159 Miss. 796, 132 So. 751; Hubbard v. Railway Co., 120 Miss. 834, 83 So. 247.

OPINION

Ethridge, P. J.

The appellee, Mrs. Claudia Moody, brought suit against the city of Meridian, to recover for a personal injury sustained because of her car coming in contact with a rope stretched across Twenty-third avenue about the point of intersection with Eighteenth street. Mrs. Moody was driving south on Twenty-third avenue in her car, and did not see the rope. She contends that there was nothing on the rope to attract attention to its presence, and no guard or person to give warning. The rope was stretched across the avenue, about four feet...