City of Natchez v. Lewis

• Decision Date: 22 April 1907
• Citation: 43 So. 471,90 Miss. 310
• Court: Mississippi Supreme Court
• Parties: CITY OF NATCHEZ v. CHRISTINA LEWIS

43 So. 471

90 Miss. 310

CITY OF NATCHEZ v. CHRISTINA LEWIS

Supreme Court of Mississippi

April 22, 1907

March 1907

FROM the circuit court of Adams county, HON. MOYSE H. WILKINSON Judge.

Christina Lewis, the appellee, was plaintiff in the court below; the city of Natchez, the appellant, was defendant there. From a judgment in favor of the plaintiff defendant appealed to the supreme court.

The plaintiff's suit was for recovery of damages for personal injuries sustained by her by reason of defective condition of a sidewalk on one of the streets of the city. The evidence showed that the city for several months before plaintiff's injury allowed a hole to exist in the sidewalk, and up to the time of plaintiff's injury took no precautions to give warning to pedestrians of the defect the hole was twelve inches or more in length, and about eight inches in depth, and slanted downward and outward toward the street; the nearest street-light was some distance away and obscured by trees. The plaintiff, late at night, in company with her stepson, was going home along this sidewalk; it was dark; a drizzling rain was falling; to avoid the mud plaintiff was walking on the outer edge of the sidewalk, and on reaching the hole, which she did not see in the darkness she fell into it, and sustained severe injuries. For some time before the injury plaintiff had known of the hole having previously passed along the sidewalk and by the hole, but at the time of her injury she had forgotten it. The defendant at the close of the testimony asked a peremptory instruction in its favor, but this was refused. The main issue on which instructions were granted, both to plaintiff and defendant, related to whether plaintiff exercised reasonable care at the time she was injured. The jury returned a verdict of $ 500 in favor of the plaintiff.

Affirmed.

Chas. F. Engle, for appellant.

The court below should have granted the peremptory instruction asked in favor of the defendant. In refusing such peremptory instruction the court was influenced by the case of City of Pascagoula v. Kirkwood, 86 Miss. 630, S.C., 8 So. 547. A difference, however, exists between that reported case and this. In the case cited Mrs. Kirkwood would have been compelled to abandon the sidewalk, and to have gone into the street, to avoid the step-off which was in the sidewalk. In this case the only way the appellee, Mrs. Lewis, could have sustained her injury was by abandoning the traveled part of the sidewalk and, by passing along the edge of the sidewalk, thus encounter the hole. It was easily possible for the appellee to have passed safely, as there was a breadth of five feet or more of good walk at the place she was hurt. Under the circumstances we submit that the municipality was not liable. 1 Thompson on Neg., 415. We submit that the question of contributory negligence in this case was one of law. Bridges v. Jackson Electric Ry. Co., 86 Miss. 584, S.C., 38 So. 788.

The city would not have been liable if the plaintiff had stepped off the sidewalk into the hole at a time when she was not using ordinary care and caution for her own safety. Then, why would not the rule hold true if she stepped into the hole at a time when she was not using ordinary care and caution for her safety? See Meridian v. Stainback (Miss.), 30 So. 607; Vicksburg v. Hennesy, 54 Miss. 396.

J. B. Stirling, and F. M. West, on the same side.

The testimony in this case shows that the appellee, Mrs. Lewis, had been to a reception, and was returning home with her stepson as escort, between ten and eleven o'clock at night; that the night was dark and rainy; that the streets were slippery; that the sidewalk was muddy; that it had been raining all day, and was drizzling rain that night; that the appellee was traveling her usual gait, which she says was fast in daytime and slow at night, but which her stepson testified was pretty fast that night since he had to walk rapidly to keep up with her; and that when she came to the hole in the sidewalk, she fell in. The appellee was asked, on cross- examination, as to her knowledge of the defective sidewalk, and admitted her knowledge of the same. Note her answers to the questions propounded to her:

"Q. Before this accident, about how many times did you use that sidewalk since you have been living down there? A. I cannot tell you. I have been living there about ten years. Q. Did you use that sidewalk on an average of once a day coming and once a day returning? A. Sometimes I used it more than that. Q. As much as two or three times a day? A. Yes, sir. Q. For the last ten years? A. Yes, sir. Q. Was that hole in the sidewalk when you came up town that night? A. Yes, sir, the hole had been there for a long time. Q. You had seen it? A. Yes, sir, I had seen it. Q. How long had that hole been there? A. For a couple of months. Q. You noticed it when you came up town that night? A. Yes, sir. Q. At the time you fell in, you did not see the hole? A. No, sir, I walked on the pavement, but didn't know about...