Crawford v. City of Meridian

• Court: Mississippi Supreme Court
• Writing for the Court: Griffith, J.
• Citation: Crawford v. City of Meridian, 174 Miss. 875, 165 So. 612 (Miss. 1936)
• Decision Date: 10 February 1936
• Docket Number: 32009
• Parties: CRAWFORD v. CITY OF MERIDIAN

165 So. 612

174 Miss. 875

CRAWFORD v. CITY OF MERIDIAN

No. 32009

Supreme Court of Mississippi

February 10, 1936

Division B

1 TRIAL.

Instruction that plaintiff must make out her case by clear preponderance of evidence held not erroneous, since term "clear" is mere surplusage.

2. MUNICIPAL CORPORATIONS.

Instruction that, if great majority of people using street under same circumstances as plaintiff did so without being injured, such street as matter of law would be reasonably safe, held erroneous.

HON ARTHUR G. BUSBY, Judge.

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

Action by Emma Crawford against the City of Meridian. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Graham & Graham, of Meridian, for appellant.

The court charged in an instruction that if the great majority of people using the street did so without being injured, then the street, as a matter of law, would be reasonably safe. The court also charged in the same instruction that although the jury may believe that other people using the street under the same circumstances as appellant, were subject to inconvenience, in the premises, that the street as a matter of law would be reasonably safe, and we submit that this test is unreasonable and unsound as the public has a right to expect a municipality to maintain its streets in such condition as could be traveled without inconvenience, except temporary inconvenience due to repairs. We submit that all of these tests were unreasonable and unsound and did not make it easy for the jury to decide the issue of negligence, as they were told in this instruction by the court.

We submit further that the instruction covered in the fourth assignment of error was erroneous and misleading on account of it being vague and indefinite and prejudicial to the rights of appellant under the law, which only places the burden on her of proving her case by a preponderance of the evidence, while this instruction charged the jury that the appellant had to prove her case by clear evidence, and charging the jury that they must believe from a clear preponderance of the evidence, which rule applies, as we understand the law, only where fraud is charged in a civil suit, and as there was no element of fraud involved, this instruction placed a greater burden upon appellant than is required by law.

The city was charged with the degree of care in inspection as the size of the municipality involved demands.

Dow v. Town of D'Lo, 152 So. 474; McComb City v. Hayman, 87 So. 11; Meridian v. Harvey, 147 So. 302; Vicksburg v. Scott, 151 So. 914; Y. & M. V. R. R. Co. v. Pittman, 169 Miss. 667; Columbus & Greenville Ry. v. Lee, 149 Miss. 543; Y. & M. V. R. R. Co. v. Beazley, 158 Miss. 370; St. Louis, S. F. R. R. Co. v. Nichols, 161 Miss. 795; Gulf & Ship Island R. R. Co. v. Simmons, 150 Miss. 506.

Howard Westbrook, of Meridian, for appellee.

Not only is the verdict in line with the overwhelming preponderance of the evidence, but also the inevitable conclusion of the court and jury could have been no other.

This court has held that the findings of the jury are conclusive when supported by reasonable and substantial evidence.

McLemore & McArthur v. Rogers, 152 So. 883; Yazoo & M. V. R. Co. v. Pittman, 153 Miss. 382; Miss. Power & Light Co. v. Smith, 153 So. 376; Montgomery Ward Co. v. Hutchins, 159 Miss. 862; Goodyear Yellow Pine Co. v. Anderson, 157 So. 700; Miss. Central R. Co. v. Roberts, 160 So. 604.

This court has repeatedly held that the only measure of duty on the part of a municipality in the maintenance of its streets is to use ordinary care to keep them in a reasonably safe condition for the use of persons using ordinary care and prudence for their own safety.

Meridian v. Crook, 109 Miss. 712, 69 So. 182; City of Natchez v. Cranfield, 124 So. 656; McComb City v. Hayman, 87 So. 11; Greenville v. Laury, 159 So. 121; Millstead v. City of New Orleans, 146 So. 492.

The instruction complained of simply states in another form the old announcement of reasonably safe streets for reasonably safe persons.

The principle objection to one instruction is the use of the language "from a clear preponderance of the evidence." In the case of Choate v. Pierce, 126 Miss. 209, 88 So. 672, the Mississippi Supreme Court in passing upon an instruction where the word "clear" had been used in connection with "preponderance of evidence" said: "In the opinion of the court clear preponderance of the evidence means simply the preponderance of the evidence." Accordingly, there is no error; or, if technically, it is harmless error.

Argued orally by S. M. Graham, for appellant, and by Howard Westbrook, for appellee.

OPINION

Griffith, J.

On the former appeal in this case it was held that a peremptory instruction for the defendant was improper. Crawford v. City of Meridian, 154 So. 888. On the second trial, the jury returned a verdict for the defendant. We are required, therefore, to examine the instructions granted at the request of defendant, and assigned as error.

Several of these instructions charged the jury that the plaintiff must make out her case by a clear preponderance of the evidence, whereas the law in such a case is that the burden on the plaintiff is that she shall prove her case by a preponderance of the evidence. The weight of authority in other states is to the effect that such instructions are erroneous and that instructions, particularly in tort cases,...