Jordan v. City of Lexington

• Decision Date: 12 November 1923
• Docket Number: 23354
• Citation: 97 So. 758,133 Miss. 440
• Court: Mississippi Supreme Court
• Parties: JORDAN v. CITY OF LEXINGTON

97 So. 758

133 Miss. 440

JORDAN v. CITY OF LEXINGTON

No. 23354

Supreme Court of Mississippi

November 12, 1923

Division B

(Division B.) January 1, 1920

1. MUNICIPAL CORPORATIONS. Ordinance as to construction of sidewalk admissible in action for injuries by defect.

In pedestrian's action against a city for injuries sustained in falling into a hole in a sidewalk consisting of foot wide planks, in which the city claimed that the sidewalk was not a four-foot plank sidewalk, as alleged by the pedestrian, but was a three-foot plank walk, and that the fourth plank, where the hole was situated, was not a part of the sidewalk, but was designed to cover a drain along the sidewalk, and that the pedestrian should have remained on the three planks intended as the sidewalk, an ordinance requiring a four-foot plank walk was admissible.

2. MUNICIPAL CORPORATIONS. City held negligent as to pedestrian stepping into unguarded hole in sidewalk.

Where a city permitted an unguarded hole to remain in a sidewalk at a point where a four-foot planked walk was suddenly reduced to three feet, and this condition had existed for a long time and the authorities had notice thereof, the city was negligent as a matter of law and liable for injuries to a pedestrian who fell into the hole at night.

3. MUNICIPAL CORPORATIONS. Contributory negligence of pedestrian injured by unguarded hole in sidewalk no defense.

Where city was negligent in permitting unguarded hole to remain in sidewalk for a long period of time, it was liable for injuries sustained by pedestrian who fell therein notwithstanding contributory negligence.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Holmes county, HON. S. F. DAVIS, Judge.

Suit by J. W. Jordan, Jr., against the city of Lexington. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Boothe & Pepper and P. P. Lindholm, for appellant.

In an action to recover damages from a municipality resulting from negligence in the construction and maintenance of sidewalks, an ordinance regulating such construction and maintenance is competent against the city to charge it with knowledge of the condition of the sidewalk in question and negligence in relation thereto. Shumway v. Burlington, 108 Iowa 424, 79 N.W. 123; Indianapolis v. Gaston, 58 Ind. 224; Aurora v. Pennington, 92 Ill. 564; Herries v. Waterloo, 114 Iowa 374, 86 N.W. 306; Reed v. Mexico, 101 Mo.App. 155, 76 S.W. 53; Myers v. Kansas, 108 Mo. 480; Pomfrey v. Saratoga, 104 N.Y. 459; Columbus v. Ogletree, 102 Ga. 293, 29 S.E. 749; Bauer v. Dubuque, 122 Iowa 500, 98 N.W. 355; Thompson v. Quincy, 83 Mich. 173, 47 N.W. 114; 8 Ency. of Evidence, page 838; 13 R. C. L., p. 505; Bayland v. Parkersburg, 78 W.Va. 749, 90 S.E. 347.

It is only where plaintiff's act is the sole cause of the injury and when defendant's act is no part of the causation, that defendant is free from liability. Ragland v. Lumber Company, 117 Miss. 602, Contributory Neg. Statute, Hemingway's Code, secs. 502-3, Amendment Laws Mississippi 1920, chapter 312.

It was reversible error for the court below to refuse plaintiff's second instruction which read as follows: "The court instructs the jury that one traveling upon the sidewalk or street of a city without notice of any defect therein has the right, when using diligence and care, to presume and act upon the presumption that it is reasonably safe throughout its entire width." Higginbottom v. Village of Burnsville, 113 Miss. 219; Hardin v. City of Corinth, 105 Miss. 99; 3 Blashfield on Instructions (2 Ed.), section 5491; Gallemore v. City of Olympia, 75 P. 978; Gallagher v. Town of Beverly, 72 P. 79; City of Indianapolis v. Gaston, 58 Ind. 224; 3 Blashfield on Instructions (2 Ed.), sec. 5487.

The municipality is liable, and that too, even though the plaintiff might have been guilty of contributory negligence, the latter being no bar. Whitfield v. City of Meridian, 66 Miss. 570; Pascagoula v. Kirkwood, 86 Miss. 630; City of Natchez v. Lewis, 90 Miss. 310.

It was prejudicial error for the trial court to exclude from the consideration of the jury the ordinance of the city of Lexington, defendant, requiring sidewalks constructed on Clifton Street and at the place of the alleged injury, to be four feet wide. 8 Ency. of Evidence, 838, par. 3; 13 R. C. L. 505; Shumway v. Burlington, 108 Iowa 424; 79 N.W. 123; Indianapolis v. Gaston, 58 Ind. 224; Aurora v. Pennington, 92 Ill. 564; Herries v. Waterloo, 114 Iowa 374, 86 N.W. 306.

The ordinance was passed by the city of Lexington. It was its own act, and should not be heard to complain, as shown in Indianapolis v. Gaston, 59 Ind. 224.

This case should be reversed on the facts. The facts clearly show that defendant was woefully and grossly negligent in respect to this walk, and that plaintiff was guilty of no negligence, or if any, only slight, and under our Concurrent Negligence Statute the city is liable.

Our court has only recently held this: "In a suit for damages for personal injuries, it is only where plaintiff's act is the sole cause of the injury and when defendant's act is no part of the causation--that defendant is free from liability." Ragland v. Lumber Company, 117 Miss. 602.

Under that rule, above stated, and under the facts in this case we submit that this defendant is liable and that this cause should be reversed for a submission to the jury on proper evidence and proper instructions. Whitfield v. City of Meridian, 66 Miss. 670; Pascagoula v. Kirkwood, 86 Miss. 630; City of Natchez v. Lewis, 90 Miss. 310.

Ruff & Johnson, for appellee.

The overwhelming weight of the evidence shows that if any injury was sustained, it was in the drain ditch and not in the sidewalk. The law is that a plaintiff seeking to recover damages for injuries sustained on account of defects or obstructions in a sidewalk or street, cannot allege one cause of action and recover on proof of another. The whole evidence in this case shows that the alleged injury did not occur in the manner alleged by the plaintiff. Before he can recover, his proof must support the allegations of his declaration. 13 R. C. L., Highway, sec. 411; Powell v. Plant, 23 So. 399; Boggs v. Jewett, 90 So. 13, 127 Miss. 308; City of Hattiesburg v. Reynolds, 124 Miss. 352, 86 So. 853.

The defendant city was called to answer in damages for alleged injuries sustained by plaintiff by reason of falling into a hole in the sidewalk. It was not alleged in the declaration that the sidewalk was not of sufficient width, nor was it alleged in the declaration that the drain ditch into which plaintiff fell was dangerous, or should be guarded.

Before the ordinance could be competent as evidence, plaintiff's declaration would have had to set up a state of facts showing that the injury was caused by negligence of the city in not constructing the walk in accordance with the ordinance, and should have supported such allegations by proof that such negligence contributed to his injury. City of Hattiesburg v. Reynolds, 124 Miss. 352, 86 So. 853; Beirness v. City of Missouri Valley, 51 L. R. A. (N. S.) 218, 144 N.W. 628.

In support of his contention that the ordinance should have been considered by the jury, plaintiff relies on the following cases: Shumway v. Burlington, 108 Iowa 424, 79 N.W. 123; Indiana v. Gaston, 58 Ind. 224; Aurora v. Pennington, 92 Ill. 564; Bauer v. City of Dubuque, 122 Iowa 500, 98 N.W. 355.

The measure of duty on the part of a municipality with reference to its sidewalks and streets is to keep them in a reasonably safe condition for use by persons exercising ordinary care and prudence in passing over them. Municipal corporations are not liable for every accident that may happen on their streets; or on their sidewalks. They are not insurers of the safety of those who use them. Their duty is discharged when they have made them reasonably safe for people of ordinary prudence. City of Meridian v. Crook, 109 Miss. 700, 69 So. 182; McComb City v. Hayman, 87 So. 11; 124 Miss. 525; Gulfport and Mississippi Coast Traction Company, et al. v. Manuel, 85 So. 308, 123 Miss. 266.

Appellant relies on the case of Higginbottom v. Village of Burnsville, 113 Miss. 209. The facts in that case are not similar to the facts in the case at bar, nor are they similar to the facts in the case of Gulfport and Mississippi Coast Traction Company, et al., v. Manuel, and McComb City v. Hayman.

Argued orally P. P. Lindholm and A. M. Pepper, for appellant, and

H. H. Johnson, for appellee.

OPINION

COOK, J.

This suit was instituted in the circuit court of Holmes county by Dr. J. W. Jordan, Jr., appellant, against the city of Lexington, appellee, seeking to recover damages for personal injuries alleged to have been sustained by appellant by reason of falling into a hole in a defective sidewalk in said city, and from a verdict and judgment in favor of the city this appeal was prosecuted.

Appellant's declaration alleged that the appellee so neglected its duty of keeping its streets and sidewalks in a reasonably safe condition that they had become unsafe and dangerous, in that on the south side of Clifton street there was a hole in the sidewalk several feet deep, caused by a washout alongside under, and across said sidewalk, and that appellee was grossly negligent in respect thereto, and wilfully, negligently, and wrongfully permitted the hole in said sidewalk to be uncovered and unguarded, and to be and continue in an unsafe, dangerous, and defective condition for a long space of time; that the appellee through its officials knew, or by the exercise of ordinary care could have known, of the defective and dangerous condition of this sidewalk; that while appellant was walking along the same in...