Ming v. City of Jackson
| Decision Date | 22 September 1947 |
| Docket Number | 36432. |
| Citation | 31 So.2d 900,202 Miss. 260 |
| Court | Mississippi Supreme Court |
| Parties | MING v. CITY OF JACKSON. |
J. Ed. Franklin, of Jackson, for appellant.
E. W. Stennett and Butler & Snow, all of Jackson, for appellee.
Appellant brought suit to recover damages suffered from a fall allegedly caused by the negligence of appellee in allowing a hole to remain in one of its sidewalks. From a verdict and judgment for the defendant, plaintiff appeals.
The declaration was in two counts, the first predicated upon negligence in causing the defect or suffering it to remain the second upon a failure to erect and maintain street lights near the place of injury. The second count also carried forward the allegations of the first count. The injury occurred about 10:30 p. m. while plaintiff was returning to her home from a neighbor's house.
The assignment of errors includes the action of the trial court in striking the second count; in giving certain instructions for the defendant; and in the exclusion of certain testimony.
The declaration described the defect in the sidewalk as a hole about eight inches in diameter, about four and a half inches in depth, through the center of which an iron pipe, of a diameter of three and a half inches, protruded. Testimony for the plaintiff substantially supported these allegations, and supported the contention that the defect had existed for a period variously asserted to be from five months to three years.
The defense set up was that there was no such hole and that plaintiff was not injured as a result of stepping therein. We need not detail the testimony on this issue. It is sufficient that there was a sharp conflict in the testimony on this point. A defect of the nature alleged in the declaration and as testified to by plaintiff's witnesses and as shown in photographs exhibited may well be considered dangerous. On the other hand, the witnesses for the defendant who had observed the sidewalk for periods running from two to seventeen years, testified that the photographs exhibited did not reflect its condition. Some of the younger witnesses testified that they had often skated upon the sidewalk at that point, others that they had regularly swept the sidewalk. All testified that at the spot pictured there had been at most only a slight depression described as 'saucer-like,' about seven and a half inches in diameter and from one to two inches at its center. There was testimony that there had been some cleaning out of the area after the accident and before photographs were made.
It is seen, therefore, that if the jury accepted the testimony of plaintiff's witnesses it my have been warranted in finding negligence. Had they accepted defendant's testimony no negligence could be found. City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L.R.A.1916A, 482; Pomes v. McComb City, 121 Miss. 425, 83 So. 836; City of Hazlehurst v. Mathews, 180 Miss. 42, 176 So 384; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121.
The foregoing cases do not attempt to set up a standard of reasonable care measureable by a yard stick. They are consistent in holding that in each case the deviation in elevation remained within the bounds of reasonableness. Nor do they exclude the possibility that there may remain residual danger. Exposure of the public to danger is not negligence if there is no unreasonable risk imposed by the actor, and even so, there is no actionable negligence if the actor has used reasonable care to maintain its sidewalks reasonably safe for use by reasonably careful persons. Supreme Instruments Corp. v. Lehr, 190 Miss, 600, 625, 199 So. 294, 1 So.2d 242; City of Greenville v. Laury, supra; City of Meridian v. King, 194 Miss 162, 11 So.2d 205, 830.
We have frequently emphasized the fact that danger and negligence are not synonymous, nor is the existence of a defect, of...
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Jackson v. State, 57904
...1031, 1042 (Miss.1982); the speed of an automobile, e.g., Howard v. State, 346 So.2d 918, 920 (Miss.1977); Ming v. City of Jackson, 202 Miss. 260, 2657-68, 31 So.2d 900, 901-02 (1947), or the intoxication of its driver, e.g., Howard v. State, 346 So.2d 918, 920 (Miss.1977); that a sample of......
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...v. City of Detroit, 341 Mich. 702, 69 N.W.2d 145, a sidewalk defect 1 1/4 inches in depth was held not actionable. In Ming v. City of Jackson, 202 Miss. 260, 31 So.2d 900, a sidewalk depression 1 to 2 inches deep did not establish negligence of the municipality in the maintenance of its sid......
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Alabama Great Southern R. Co. v. Bishop
...Jones, supra; Downing v. Drybrough, Ky., 249 S.W.2d 711; Burton v. Horn & Hardart Baking Co., 371 Pa. 60, 88 A.2d 873; Ming v. City of Jackson, 202 Miss. 260, 31 So.2d 900; District of Columbia v. Haller, 4 App.D.C. 405; Central of Georgia Ry. Co. v. Bagley, supra; City of Birmingham v. Cra......
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