Gould v. Town of Newton

• Decision Date: 17 March 1930
• Docket Number: 28273
• Court: Mississippi Supreme Court
• Parties: GOULD v. TOWN OF NEWTON

126 So. 826

157 Miss. 111

GOULD v. TOWN OF NEWTON

No. 28273

Supreme Court of Mississippi

March 17, 1930

Division B

MUNICIPAL CORPORATIONS. Negligence of town in respect to injury to pedestrian stumbling on stake on sidewalk held for jury (Hemingway's Code 1927, section 516).

In action to recover damages against town for an injury alleged to have been sustained by pedestrian because of a fall resulting from unsafe condition of sidewalk, evidence in respect to negligence of town in permitting stake on sidewalk in regular traveled way held sufficient for submission to jury, in view of Comparative Negligence Statute, Laws 1920 chapter 312 (Hemingway's Code 1927, section 516).

HON. E S. RICHARDSON, Judge.

APPEAL from circuit court of Newton county HON. E. S. RICHARDSON Judge.

Action by Nora Gould against the Town of Newton. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

W. I. Munn, of Newton, for appellant.

Where there was shown to be negligence on the part of the plaintiff, and contributory negligence on the part of the defendant, under such circumstances it became and was a question of fact to be decided by a jury, and not a question of law to be decided by the court.

City of Meridian v. McBeath, 80 Miss. 485.

Section 503 of Hemingway's Code of 1917 is in the following words:

503: Negligence--Question for jury--2. All questions of negligence and contributory negligence shall be for the jury to determine. Laws of 1910, Chapter 135, in effect April 16, 1910.

J. L. Byrd, of Jackson, for appellee.

It is the duty of a pedestrian using the streets to exercise ordinary care in the use thereof. While the town owes a duty to the pedestrian, the pedestrian also owes a duty to himself to exercise reasonable care and caution in the use of the street, and if a defect exists in the street in plain and unobstructed view, and if a person looking where he is walking can see the defect and does not do so and stumbles over some obstruction, such person ought not to be allowed to recover.

Town of Union v. Heflin, 61 So. 652; Higginbottom v. Village of Burnsville, 74 So. 133; Birdsong v. Town of Mendenhall, 52 So. 795.

OPINION

Anderson, J.

Appellant brought this action against the appellee in the county court of Newton county, to recover damages for an injury alleged to have been sustained because of a fall resulting from the unsafe condition of one of appellee's sidewalks. There was a trial which resulted in a directed verdict and judgment in favor of appellee; and from that judgment appellant prosecuted an appeal to the circuit court of the county where the judgment of the county court was affirmed. From the judgment of the circuit court appellant prosecutes this appeal.

The action of the court in directing a verdict for the appellee, and in excluding certain testimony offered by appellant, is assigned as error.

The evidence on behalf of defendant tended to establish the following facts: The main business part of the town of Newton is divided by two streets, one running north and south, and the other east and west. At the southwest corner of the intersection of these streets the alleged injury occurred. Appellant was walking south, in the nighttime, along the west side of the street running...