Johnson v. City of Pass Christian, 54880

• Decision Date: 24 July 1985
• Docket Number: No. 54880,54880
• Citation: 475 So.2d 428
• Parties: Cynthia Ann JOHNSON v. CITY OF PASS CHRISTIAN, Mississippi.
• Court: Mississippi Supreme Court

Page 428

475 So.2d 428

Cynthia Ann JOHNSON v. CITY OF PASS CHRISTIAN, Mississippi.

No. 54880.

Supreme Court of Mississippi.

July 24, 1985.

Rehearing Denied Sept. 18, 1985.

Paul S. Minor, David T. Cobb, Biloxi, for appellant.

Frank P. Wittmann, III, Wittmann & Sneed, Gulfport, for appellee.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.

DAN M. LEE, Justice, for the Court:

This is an appeal from the Circuit Court of Harrison County, Mississippi, wherein the appellant was awarded damages arising from an automobile accident in the City of Pass Christian, Mississippi. The court granted a judgment non obstante veredicto in favor of the appellees.

Cynthia Ann Johnson filed suit against the City of Pass Christian, Mississippi, on October 5, 1981, attempting to recover for injuries she sustained in a one-car accident on Holiday Drive, a street in the city. In her suit, she alleged that the City had improperly failed to maintain Holiday Drive, and that a large hole in that street was the proximate cause of her injuries. The accident occurred on April 7, 1981, when the vehicle in which Mrs. Johnson was riding left Holiday Drive and hit a utility pole located off the traveled portion of the road. Mrs. Johnson alleged that she lost control of her car when the right front tire hit a large hole near the edge of the pavement. The injuries which Mrs. Johnson suffered as a result of the accident left her with permanent facial scarring. They also caused her to lose her job, and she has been unable to return to work. As of the date of the trial, Mrs. Johnson had incurred medical expenses of $4,550.91.

At the close of the plaintiff's case, the defendants moved for a directed verdict, but that motion was denied. The defendant moved again for a directed verdict at the end of the trial, and that motion was also denied. The jury returned a verdict in favor of the plaintiff in the amount of $75,000. Judgment was entered on August 4, 1982. The defendants filed a motion for a j.n.o.v. the verdict, in the alternative, a motion for a new trial, and in the alternative, a motion for a remittitur. The court, on August 23, 1982, entered a judgment n.o.v. in favor of the defendant. The court found it unnecessary to pass on the motions for a new trial and for a remittitur.

The appellant assigned one error to the trial court: That it erred in granting a judgment n.o.v. in favor of the defendant.

Holiday Drive is a two-lane, blacktopped road in the City of Pass Christian. It is a relatively short street, connecting with Highway 90, and running through primarily a residential area. One Chinese restaurant, one apartment complex, and about fifteen to twenty houses comprise the buildings on Holiday Drive.

The plaintiff, Cynthia Johnson, lived on Holiday Drive, and on April 7, 1981, she was traveling on Holiday Drive, going home for lunch. She turned off Highway 90 onto Holiday Drive, and, driving north, passed a southbound car. Shortly after passing that car, Mrs. Johnson lost control of her own vehicle. Her car veered off the road, and struck a utility pole which was approximately four feet from the edge of the asphalt.

Mrs. Johnson testified that she did not know what had caused her to lose control of her car. Vincent Dauro, a 68-year-old construction worker, testified that he was an eyewitness to the accident. He said that he saw Mrs. Johnson's right front tire hit a hole in Holiday Drive, that when she did, the rear of her vehicle flew into the air, and that she then left the road and hit the pole. He further stated that he examined the hole after the accident. He alleged that the hole was in the traveled part of the blacktop, and that it was sixteen inches into the road, that it was sixteen inches wide, and that it was sixteen inches deep. According to Mr. Dauro, the hole could not be seen unless one was almost standing over it, and that he came to the conclusion, after examining the hole, that the hole had caused Mrs. Johnson's accident.

Several pictures of the alleged defective area in Holiday Drive were submitted into evidence. All of the pictures show an area where Holiday Drive is at its narrowest, and where a culvert runs under the street. They reflect that there is some sort of caved in or washed out area that exists at the edge of the road. Testimony conflicted as to both the size and the nature of the defect. One of the pictures was taken by the plaintiff's husband, the day after the accident. When Dauro was shown this picture on cross-examination, he stated that it did not reflect the condition of the road as he saw it after the accident. Joe Johnson, the plaintiff's husband, testified that the picture did reflect the hole which existed on the side of the road. The plaintiff also called Winstead Sims, Street Superintendent of the City of Pass Christian, as an adverse witness. Mr. Sims looked at photographs of the culvert area. He testified that his crew had worked on Holiday Drive about a month prior to the accident, and had seen no such defect. He also testified that, had he seen such a defect, he would have repaired it. Jim Fairley, an engineer called by the plaintiff, testified that there was a cave off area at the culvert. He inspected the accident scene in June, 1982, and in July, 1982, over a year after the accident. He testified that in June, the encroachment was eighteen inches into the road, fifteen to sixteen inches wide, and six inches deep. In July, the encroachment was twelve inches into the road, and one to two inches deep. He concluded that the area had been worked on between his first and second visits. A measurement of Holiday Drive taken at that point showed that it was fifteen and one-half feet wide at the culvert area. In Mr. Fairley's opinion, the deterioration of the road at the culvert area was about three to five years old. At the close of the plaintiff's evidence, the City moved for a directed verdict. It alleged that the plaintiff had not shown that the City had notice of any defect in Holiday Drive. It also pointed out that testimony had conflicted as to the size and extent of the hole in the road, and that Dauro had testified that the picture did not even show the hole that he saw. Finally, the City asserted that the plaintiff had not shown what had caused her to lose control of her vehicle. The court overruled the motion, but the judge told all the attorneys that he would seriously consider a j.n.o.v. if a judgment were returned for the plaintiff.

At that point the City called Judy Newnom, a police woman who had observed the scene of the accident shortly after it occurred. Mrs. Newnom said that Mrs. Johnson's tire tracks indicated that she left the road...