Dent v. Town of Mendenhall

• Decision Date: 11 May 1925
• Docket Number: 24668
• Citation: Dent v. Town of Mendenhall, 139 Miss. 271, 104 So. 82 (Miss. 1925)
• Court: Mississippi Supreme Court
• Parties: DENT v. TOWN OF MENDENHALL. [*]

104 So. 82

139 Miss. 271

DENT v. TOWN OF MENDENHALL. ^[*]

No. 24668

Supreme Court of Mississippi

May 11, 1925

Division B

1 NEGLIGENCE. Instruction that unlawful speed of automobile approaching bridge would bar recovery bad.

Instruction in action for death from automobile accident, based on unsafe condition where street and bridge joined, that there could be no recovery if bridge was approached at a speed "exceeding ten miles per hour," held bad, as such speed, if in violation of ordinance or statute, would only amount to contributory negligence, which would not bar recovery, unless it was the sole proximate cause of accident.

2. TRIAL. Instruction, in street accident case, bad, as ignoring condition likely to deceive traveler.

Instruction, in action for accident from automobile going into creek where bridge and street on embankment met, that, though the jury may believe the road was twenty feet wide, and the bridge only twelve feet wide, without railing on the side of the accident, and with grass growing at the roadside, there could be no recovery if they believe there was sufficient room on the bridge for a reasonably prudent person, driving at lawful speed, with car in good condition and under control, to have crossed safely, held erroneous, as ignoring the condition likely to deceive a traveler as to the width of the bridge.

3. NEGLIGENCE. Contributory negligence goes only to diminution of damages.

Any contributory negligence of driver in not observing, through obscuring weeds, dangerous condition in that bridge was narrower than street where they joined, would not bar recovery, but only go to diminish damages, if town was guilty of any substantial negligence proximate and contributory to the accident.

4. BANKRUPTCY. Cause of action for death not passing to trustee.

Personal cause of action for wrongful death does not pass to trustee in bankruptcy.

HON. W. L. CRANFORD, Judge.

APPEAL from circuit court of Simpson county, HON. W. L. CRANFORD, Judge.

Action by John Dent against the Town of Mendenhall. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

Judgment reversed, and case remanded.

E. L. Dent, for appellant.

This is an appeal from the circuit court of Simpson county. Appellant brought suit against the municipal corporation, the town of Mendenhall, the appellee, to recover damages resulting from the injuries and death of his wife, alleged to have been caused by the negligence in construction and maintenance of a bridge on one of the most populous and generally used streets in the town; that his wife was driving an automobile over the bridge with due care when it slipped or fell from the bridge turning over falling several feet into a ditch or hole thereby mortally wounding her.

With the uncontradicted testimony as to the width of the bridge--twelve feet--with no banister or guard on north side and the banister on south side leaning toward center of bridge, and this bridge in this condition in an eighteen or twenty foot gravel street, the most populous and frequented street and bridge in the town of Mendenhall, and notwithstanding our comparative negligence statute, the following is a fair sample of the instructions given appellee in the court below: "The court instructs the jury for the town of Mendenhall the defendant, that if you believe from the evidence in this case that it has been shown that the bridge which Mrs. Dent was attempting to cross at the time she lost her life was of sufficient width to admit the free and safe passage of her car, if said car was under good control by her and being cautiously operated or driven by her, then you must find for the defendant."

And the one following: "The court charges the jury for the defendant that though you may believe by a preponderance of the evidence in this case that the said bridge was only twelve feet wide, and that the road approaching it was several feet wider, and that there was no banister on the north side of said bridge, and you may further believe from the evidence that the post on the south side of the bridge was leaning toward the center of the bridge, and there was grass growing on the north side abutting the bridge, still you cannot find for the plaintiff, if you further believe from the evidence that there was sufficient room on the bridge for a reasonably prudent person driving a car not exceeding ten miles an hour with the car in good condition and under control to have crossed the bridge safely." These contravene the statute, section 502, Hemingway's Code.

There was no controversy about the bridge being only twelve feet wide, and the road approaching it several feet wider. There was no banister on the north side, the post on the south side was leaning towards the center, and there was grass or weeds on the north side on the edge of the bridge and street.

It appears that the attorneys for the town and trial court had in mind if the bridge was wide enough for a car to pass over, and that they did pass over, that the bridge was thereby reasonably safe and plaintiff could not recover. We shall now for convenience quote some of the numerous authorities announcing the law governing liability in this case which will show the many errors of the learned circuit judge in the trial of the case in the lower court. Saxon v. Town of Houlka (Miss.), 65 So. 124.

Long before the enactment of our comparative negligence statute, in 1896, in City of Natchez v. Shields, 74 Miss. 871, it was held: "A municipality is liable for an injury suffered by the occupant of a carriage because of defects in its street of which it had due notice." See, also, Caldwell et al. v. George, 96 Miss. 484, 50 So. 631.

The condition of the bridge being both proven and confessed, and the knowledge of its condition admitted on the part of the officers of the town, the instruction about the width of the street for use was error, and for that alone the case should be reversed. That instruction is also condemned by the law announced in Higginbottom v. Village of Burnsville, 74 So. 133.

The instruction was written doubtless on the doctrine announced in Gulfport & Miss. Coast Traction Co. et al. v. Manuel et al., 123 Miss. 266, 85 So. 308, which we think is an entirely different case from the one at bar. In that case "The pole which caused the death of Manuel was situated outside of the traveled portion of the street."

Justice HOLDEN well said in McWhorter v. Draughn et al., 102 So. 567: "The open road is the great privilege given to every traveler in our state and nation, and he may recover for injuries received on account of its wrongful obstruction."

A peremptory instruction was given in the case of Vicksburg v. Harralson, 101 So. 713, on liability and we think the case at bar is a much stronger case for a peremptory instruction.

J. D. Thames, A. W. Dent and Hirsh, Dent & Landau, also for appellant.

Instruction No. 1 was given the appellee, as follows: "The court instructs the jury for the town of Mendenhall, the defendant, that if you believe from the evidence in this case that it has been shown that the bridge which Mrs. Dent was attempting to cross at the time she lost her life was of sufficient width to admit the free and safe passage of the car, if said car was under good control by her and being cautiously operated or driven by her, then you must find for the defendant."

This instruction does not state the law correctly according to the well-established rules and announcements of this court. Mrs. Dent, at the time she was killed, had a lawful right to assume that the street and all parts thereof was reasonably safe for the purpose for which she was using it. She did not have to go to any particular side of the bridge to cross in order to keep the gravel from slipping or sliding off the bridge and carrying her automobile with it. She did not have to look for unguarded holes and pitfalls in the street or on the bridge and steer her car to the left against a leaning banister in order to keep her car from falling in the unguarded hole on the right-hand side, as this instruction required her to do. Brahan v. Meridian Light & Ry. Co., 121 Miss. 294.

Mrs. Dent had a right to a reasonably safe street while she was travelling in the town of Mendenhall, and no unbiased mind on the evidence in this record can draw the conclusion that the bridge off of which she is shown to have fallen, can say that this bridge and its approaches were reasonably safe for any purpose, however carefully they may have been used. Jordan v. City of Lexington, 133 Miss. 440.

The court will observe that one instruction granted assumes that the appellee may have been negligent in having a bridge only twelve feet wide, and that the street approaching it was several feet wider, and that there was no banister on the right-hand side, the side off of which she fell, and that the post on the south side of the bridge was leaning toward the center of the bridge and that there was grass growing on the north side of the bridge, yet this negligence did not entitle the appellant to recover, if there was sufficient room on the bridge for a reasonably prudent person driving a car, not exceeding ten miles an hour with the car in good condition and under control to have crossed the bridge.

There was no ordinance introduced in the trial of this case to show that one using the streets of Mendenhall should not drive over ten miles an hour. No ordinance at all was introduced relating to the speed of automobiles in approaching, going on, over or across the bridge in question on said street or indeed any bridge on any street in the town of Mendenhall. We assume appellee intended to invoke section 5777 of Hemingway's Code.

This section has no application...