City of Natchez v. Cranfield

• Decision Date: 25 November 1929
• Docket Number: 28178
• Citation: 124 So. 656,155 Miss. 540
• Court: Mississippi Supreme Court
• Parties: CITY OF NATCHEZ v. CRANFIELD

124 So. 656

155 Miss. 540

CITY OF NATCHEZ v. CRANFIELD

No. 28178

Supreme Court of Mississippi

November 25, 1929

Division B

Suggestion of Error Overruled Jan. 6, 1930.

APPEAL from circuit court of Adams county, HON. R. L. CORBAN, Judge.

Suit by Mrs. B. G. Cranfield against the city of Natchez. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

W. C. Martin and S. B. Laub, both of Natchez, for appellant.

A traveler has not the right to assume, where adequate provision has been made for travel by pedestrians and by vehicles, and between those ways the remaining surface has been left for grass or tree plots, that those plots are reasonably safe for travel.

Norfolk v. Travis (1927), 149 Va. 523, 56 A.L.R. 214, 140 S.E. 641; Gulfport & Mississippi Coast Traction Co. v. Manuel, 123 Miss. 266, 85 So. 309; McComb v. Hayman, 87 So. 11, 124 Miss. 526.

Ordinary care over streets is the measure of duty required of municipalities.

McComb City v. Hayman, 87 So. 11, 124 Miss. 526; Gulf & Mississippi Traction Co. v. Manuel, 85 So. 309, 123 Miss. 266.

Kennedy & Geisenberger, of Natchez, for appellee.

"Sidewalk space" is defined in 36 Cyc. 440, to be "the space from the lot to the curb" and it was within this area that the plaintiff was injured.

Park strips between the sidewalk and the curbing of a street are generally deemed to be as much a part of the street as any other ground within its limits, and the municipality is therefore bound to keep them in a reasonably safe condition for travelers.

13 R. C. L., p. 383, sec. 312.

Where a city had both actual and constructive notice of the condition of the park strip and a wooden covering loosely laid across the top of the excavation had been there for a period of two years it was negligent.

Norfolk v. Travis, 56 A.L.R. 220; Knight v. LaGrande (Ore.), 271 P. 41; 61 A.L.R. 259; Butler v. McMinnville (Ore.), 268 P. 760; 59 A.L.R. 381.

A pedestrian may cross a street at other points than regular crossings.

13 R. C. L. 468, sec. 381; Brickwood Sackett Instructions, Vol. 2, page 1079, sec. 1644; Denver v. Stein, 25 Colo. 125, 53 P. 283; Natchez v. Lewis, 90 Miss. 310, 43 So. 47; Saxon v. Houlka, 107 Miss. 161, 65 So. 124; Vicksburg v. Harrison, 136 Miss. 872, 101 So. 713, 39 A.L.R. 777.

OPINION

Griffith, J.

Madison street in the city of Natchez is paved in the center, and on the south side of said paved area there is, first, a neutral strip about thirty-six inches wide, and next to this and extending to the property line is a concrete sidewalk five feet wide. Immediately adjacent to the pavement and in the neutral strip aforesaid there is, at the point where the injury in this case occurred, a catch-basin which was covered with a wooden cover made of 1x12 planks nailed on two crosspieces, 2x4. The top of the catch-basin is about three feet wide by four feet long.

On the morning of the injury, appellee, while attempting to cross from the sidewalk on the said south side of said street to the opposite side of the pavement, where her automobile was parked, stepped on said cover and in some way fell into said catch-basin and was hurt. Suit was filed against the city to recover for the injury; judgment was rendered sustaining the action, and the city appeals.

The manner in which the injury occurred, as laid in the declaration, is specifically that, when appellee stepped on the said catch-basin cover, it "tilted, turned and bent with the weight of the plaintiff, throwing her down into said excavation and violently against the walls thereof;" and the specific charge of negligence alleged against the city was that the said cover was "carelessly and negligently laid loosely across said excavation without being in any manner secured or attached to the ground."

We quote the entire of the testimony of appellee on the precise point as to how the injury occurred:

"Q. Tell the jury how you received these injuries. A. I stepped on a board across this hole and the end of the board went down and this limb went down in the hole and I caught on my arm. Q. How was this hole covered? A. It has a board across it. Q. Was the board fastened to the ground? A. No sir, it was not fastened when I stepped on it. It turned like that, and this limb went in. Q. What was the size and depth of the hole? A. About like that (showing) and a board like that, and went sideways. Q. This board you stepped on there, that was two or three planks nailed together to make a covering over this hole? A. I don't know about that, but when I stepped on it, it turned over. Q. How large was this wooden covering? A. It seemed to me about that wide (showing about two by three feet). Q. This plank was over the hole? A. Yes, sir, it certainly was. Q. And you say the plank turned when you stepped on it? A I could not say whether it broke or turned."

The only other eyewitness who testified answered as follows:

"Q. Tell the jury about it. A. When she came out I came out behind her and she stepped on this plank. Q. Where was the plank? A. Between the curb and the sidewalk over the hole. Q. What happened then? A. The plank leant to one side and she went down in it. Q. Did you make an outcry just as she fell? A. Yes, sir, I wanted to tell her not to get on it. Q. Why? A. Because the plank was not nailed. It was kind of rotten on one end. Q. This plank that was there, was it one or more planks? A. It was two planks nailed together. Q. Tell the jury was it approximately this size? A. It was about this wide (showing). Q. About two and a half by three feet? A. Yes, sir, I guess so. Q. What you call the hole was the city sewer? A. Yes, sir. Q. And these planks went over the opening in the sewer? A. Yes, sir. Q. This hole was completely covered by the plank? A. Yes, sir. You could only see it from Pearl street."

The further testimony developed that when, about two years before this date, the city was paving this street and others, covers for the catch-basins, or at least some of them, were made of heavy plank 1x12, nailed securely to crosspieces 2x4, and large enough to fully cover the several catch-basins, and that later these basins were supplied with iron coverings including the basin here in question, but this iron covering was not placed over this particular basin until after the accident, and there is no showing in the record when the iron coverings were placed upon the others, nor whether it was all done at once, or whether the process was gradual and progressive. It is not shown by the record whether any of the covers, the wooden ones first used, or the iron ones later placed, were in any manner fastened to the ground; it being shown only that in both cases the covers were not fastened over the particular basin here in issue. And there is not a word in the...