Hawkins v. City of Natchez

• Citation: 133 So.2d 610,242 Miss. 91
• Decision Date: 16 October 1961
• Docket Number: No. 41968,41968
• Parties: Lola HAWKINS et al. v. CITY OF NATCHEZ, Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 610

133 So.2d 610

242 Miss. 91

Lola HAWKINS et al. v. CITY OF NATCHEZ, Mississippi.

No. 41968.

Supreme Court of Mississippi.

Oct. 16, 1961.

Berger, Callon, Zuccaro & Wood, Natchez, for appellant.

C. L. Collins, Natchez, for appellee.

RODGERS, Justice.

This is a damage suit filed by the heirs-at-law of James Lee Hawkins, deceased, against the City of Natchez, Mississippi, in the Circuit Court of Adams County, Mississippi. The defendant filed an answer, and a jury trial was had, resulting in a verdict and judgment in favor of the defendant, the City of Natchez. Appellants made a motion for a new trial, and from an adverse judgment, the case has been appealed to this Court.

The evidence introduced shows that on July 26, 1959, about 11 o'clock a. m. on a rainy day, the intestate, James Lee Hawkins, a child four years of age, went with his brother and sister to a grocery store on the south side of Beaumont Street in the City of Natchez; that as the children returned from the store, they crossed Beaumont Street and went along a dirt sidewalk on the west side of Woodlawn Avenue. There was a storm sewer or open drainage ditch running parallel with, and adjacent to, Woodlawn Avenue. This drainage ditch was about three feet, three inches wide and two feet, four inches deep, and was located between the dirt sidewalk and the paved portion of Woodlawn Avenue. There had been a heavy rain and the ditch was full of water, and appellants claim that there was water upon the sidewalk and on Woodlawn Avenue. The children traveled along the dirt path in a northerly direction, when suddenly the deceased got into the swift moving current of water in the ditch and was swept into the 24-inch culvert under Beaumont Street, and drowned.

The evidence reveals that water from other streets passes down Woodlawn Avenue into the open drainage ditch above-described. The declaration filed by appellants charges, among other things, that the City of Natchez was negligent in failing to maintain a reasonably safe sidewalk, drainage ditch and culvert at a place where little children congregate to go to a nearby school, and that this failure of the City to maintain a reasonably safe sidewalk, culvert and drainage ditch was the proximate cause of the death of the child.

The appellants complain on appeal to this Court that the lower court should have granted a judgment in favor of the appellants; that certain instructions given to the appellee, the City of Natchez, were erroneous; that the testimony of the witness John Banks, a former city engineer, who was offered to show certain recommendations made to the City of Natchez was erroneously rejected by the court; and that the minutes of the Mayor and Board of Aldermen referring to the open ditch on Woodlawn Avenue was not permitted to be introduced in evidence and that this was an error.

The appellants introduced photographs of the drainage ditch and culvert opening. A mail carrier testified that the water in this area had been getting out over the road, the walk, and over the banks of the ditch for some time. The witness John Banks was offered by the appellants for the purpose of showing that the City had knowledge of the dangerous condition of this drainage ditch and culvert. The brother and sister of the deceased testified as to what occurred at the time the child drowned, and the mother and father were also offered as witnesses. The city clerk was offered to show the minutes containing the recommendations of the city engineer. For the defense, the City of Natchez introduced the mayor, a member of the board of aldermen, a director of public works, a city engineer from the City of Jackson, Mississippi, a city engineer from the City of Greenville, Mississippi, an engineer from Baton Rouge, Louisiana, and a local civil engineer from the City...