City of Meridian v. Akin

• Decision Date: 02 November 1942
• Docket Number: 35037.
• Court: Mississippi Supreme Court
• Parties: CITY OF MERIDIAN v. AKIN.

10 So.2d 194

193 Miss. 505

CITY OF MERIDIAN v. AKIN.

No. 35037.

Supreme Court of Mississippi

November 2, 1942

Robert R. Wallace and Jacobson, Snow & Covington, all of Meridian, for appellant.

M V. B. Miller and L. J. Broadway, both of Meridian, for appellee.

McGEHEE Justice.

This appeal is from a judgment in favor of the appellee, Mrs. Evie Akin, for damages sustained when she stepped into a hole and fell down on the sidewalk in the business section of the City of Meridian on the 28th day of March, 1936, causing a serious and permanent injury to her knee.

Among other errors assigned on appeal, the appellant contends (1) that it was entitled to a peremptory instruction in its favor on the ground that the proof did not disclose a failure on the part of the municipality to exercise ordinary care to maintain the sidewalk in a reasonably safe condition for the use of persons exercising proper care and caution for their own safety; (2) because the proof disclosed that the appellee, together with her husband, B. H. Akin, on April 20, 1936, for a valuable consideration, executed a full, complete, and final release to the City of Meridian of all claims, causes of action, damages, rights or interest held by either of them on account of the said injury.

We are unable to determine from the evidence the exact nature character, and extent of the alleged defective and dangerous condition in the sidewalk complained of, but the plaintiff's proof seems to disclose that the sidewalk was approximately twelve feet in width and that nearer to the street than the center of the walk there were two adjacent blocks, approximately four feet square, which had become pressed down lower than the remaining blocks in such manner as to form a hole approximately four inches deep and of sufficient size for the plaintiff to step into it and cause her to fall. She had driven several miles from her home, which was located out in the country, and she testified that she was not familiar with the condition of the sidewalk prior to the accident; but it was shown that others, whose places of business were located in that particular area of the business section of the City, and who had good reason to be familiar with the situation, had previously stumbled and fallen at the place in question, and that the city authorities had been duly notified of both the alleged defective and dangerous condition of the pavement and of the fact that pedestrians were stumbling and falling there, and had been requested several days prior to the accident, and on two or more former occasions, to remedy the condition complained thereof. This testimony was competent to show whether the defect complained of was inconsequential, or such as to cause the City to reasonably anticipate that some injury would probably result therefrom, and was competent to prove notice to the City as a basis for the plaintiff's claim that there had been a negligent failure to discharge the duty of maintaining the sidewalk in a reasonably safe condition for the use of those exercising ordinary care. We do not think that the cases of Mississippi Central Railroad Co. v. Miller, 40 Miss. 45, 47, and Tribette v. Illinois C. R. Co., 71 Miss. 212, 13 So. 899, cited by the appellant in support of its objection to this testimony, are in point here.

In our opinion, the proof, as contained in the record now before us, was sufficient to go to the jury on the question as to whether the defect was of such character as to make the sidewalk unsafe for use by persons exercising proper care for their own safety and also as to whether the City ought reasonably to have anticipated that some injury would probably result therefrom to a person so using the sidewalk in the accustomed manner; and that, therefore, the City was not entitled to the requested peremptory instruction on the question of liability under the principles announced in the cases of City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L.R.A. 1916A, 482; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; and Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827.

Immediately following the appellee's injury, she was carried to a local hospital where she remained for treatment at least a week and was then sent to her home, on account of the alleged crowded condition of the hospital, and she was then confined to her bed at home most of the time for approximately three months. It was shown,...