Memphis Asphalt & Paving Co. v. Fleming
| Decision Date | 07 November 1910 |
| Citation | 132 S.W. 222,96 Ark. 442 |
| Parties | MEMPHIS ASPHALT & PAVING COMPANY v. FLEMING |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, Second Division; F. Guy Fulk Judge; reversed.
Reversed and dismissed.
J. H Harrod and Harry H. Myers, for appellant.
It was for the city authorities to say whether or not a guard rail should be erected. No charge of negligence can be maintained unless it can be shown that there has been some neglect of duty. The contract does not call for the erection of a guard rail nor maintenance of lights, and the proof is absolute that appellant had complied with every specification of the contract in the building of the sidewalk. Moreover, it had been completed and accepted by the city by opening up the sidewalk to public use before the accident occurred. Appellant's request for peremptory instruction should have been granted.
Bradshaw Rhoton & Helm, for appellee.
The fact that the city would not be liable does not absolve appellant, while it was in possession and had charge of the street, from the necessity of exercising such care as was necessary to prevent persons rightfully using the street in the use of ordinary care from being injured. The sidewalk at this point was manifestly dangerous; appellant was in possession; should have erected guard rails and maintained lights to warn pedestrians of the danger, and, failing therein, is liable.
In this suit the plaintiff recovered judgment below for $ 783 damages for personal injury caused by stepping or falling off the north edge of the sidewalk into the town branch in the alley on West Fourth Street, between Center and Louisiana streets in the city of Little Rock, on the night of September 5, 1909.
This sidewalk was constructed by the Memphis Asphalt & Paving Company along the north side of West Fourth Street, across said alley, over the branch therein, which was about five and a half feet deep and twelve feet wide, its north edge being the property line, under its contract with an improvement district of said city under the supervision of the district's engineer and in accordance with the plans and specifications furnished by the engineer of the city. There was no guard rail or barrier erected along the north edge of the sidewalk where it extended over said branch, nor was any provided for in nor required by the contract for the protection of persons using the walk; neither was there any light placed thereon to warn persons of the danger at the time of...
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...258 Fed. 591, 594 to 597; Erie & Western Transp. Co. v. City of Chicago, 178 Fed. 42, 52, 53, 54 L. Ed. 641; Memphis Asphalt & Paving Co. v. Fleming, 96 Ark. 442, 132 S.W. 222; Canal Const. Co. v. Clem, 163 Ark. 416, 260 S.W. 442; Armstrong v. Tulsa, 102 Okla. 49, 226 Pac. 560; Jones v. Bec......
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