City of Pascagoula v. Kirkwood

• Citation: 86 Miss. 630,38 So. 547
• Court: United States State Supreme Court of Mississippi
• Decision Date: 05 June 1905
• Parties: CITY OF PASCAGOULA v. VIRGINIA M. KIRKWOOD

38 So. 547

86 Miss. 630

CITY OF PASCAGOULA v. VIRGINIA M. KIRKWOOD

Supreme Court of Mississippi

June 5, 1905

FROM the circuit court of Jackson county, HON. WILLIAM T McDONALD, Judge.

Mrs Kirkwood, the appellee, was plaintiff, and the city of Pascagoula, the appellant, defendant in the court below. From a judgment in plaintiff's favor for $ 150, the defendant appealed to the supreme court.

On the trial plaintiff testified that she was walking along the sidewalk with her husband at night, having hold of his arm that there was an abrupt step-off in the sidewalk of about a foot; that she had known of this defect for about three years, and had frequently passed it; that the night was dark and she was looking out for this step-off, but could not see it; that her husband was a little ahead and stepped over the place before they discovered it, and pulled her over, she falling down and wrenching her back and ankle badly. On cross-examination she stated that the street along by the side of the sidewalk was a smooth, shelled street, and she could have gotten to the street easily by a crossing over the gutter just before reaching the step-off, and pedestrians frequently used the street, but she did not like to go on the street on account of vehicles and the street cars.

Affirmed.

H. B. Everett, for appellant.

The step over which plaintiff fell was one reasonably safe for use by persons in the exercise of ordinary prudence, and though possibly not constructed in the very best method, it was a reasonable method adopted for overcoming a natural obstacle--to wit, the wash of the sidewalk. A municipality is not held liable in such cases for a failure to adopt the best method, if the one adopted is reasonably sufficient and safe, prudently used. 2 Dillon on Municipal Corporations, sec. 789; Centralia v. Krouse, 64 Ill. 19; Vicksburg v. Hennessey, 54 Miss. 391.

Persons acquainted with the peculiar dangers of a locality must use proportionate care to avoid injury. Gasport v. Evans, 112 Ind. 133 (s.c., 2 Am. St. Rep., 164); McAdory v. L. & N. R. R. Co., 109 Ala. 636 (19 So. 905).

The case of Meridian v. McBeath, 80 Miss. 485, which appeared to influence the trial judge in refusing to give the peremptory instruction asked by the defendant, is easily differentiated from this case, as that case turned entirely on the doctrine that momentary forgetfulness should not be imputed as a fault and defeat a recovery on the plea of contributory negligence, that plea having no other support than proof of previous knowledge of the defect. Eliminate that one saving feature and McBeath would have fallen into the class of less fortunate suitors in Hennessey v. Vicksburg, 54 Miss. 391: Gasport v. Evans, 112 Ind. 133; McAdory v. L. & N. R. R. Co., 109 Ala. 636; Walker v. Vicksburg, 71 Miss. 899.

J. O. S. Sanders, for appellee.

On the trial of this case there was but one real issue to be decided--that is, Was the city at fault? And, if so, did Mrs. Kirkwood exercise reasonable care and caution to prevent injury to herself? This was an issue of fact to be passed on by the jury; it was fairly submitted on instructions by the court, and decided against, the city.

It is contended that Mrs. Kirkwood was guilty of contributory negligence inasmuch as she failed to see right well on a dark night. We merely observe that it is not customary for ladies; when going to church, to carry a searchlight; and from the undisputed testimony it is manifest that she did all that she reasonably could be expected to do to avoid the injury, and the jury by their verdict have so found.

In support of the various contentions we submit the following authorities:

A municipality is liable for an injury suffered by the occupant of a carriage because of defects in its streets of which it had due notice. Natchez v. Shields, 74 Miss. 871.

Where in an action for damages resulting from collision with an obstruction alleged to have been negligently placed in a street, the plaintiff shows momentary forgetfulness on his part of the presence...