Pomes v. McComb City

• Decision Date: 22 December 1919
• Docket Number: 20884
• Citation: 121 Miss. 425,83 So. 636
• Court: Mississippi Supreme Court
• Parties: POMES v. MCCOMB CITY

83 So. 636

121 Miss. 425

POMES v. MCCOMB CITY

No. 20884

Supreme Court of Mississippi

December 22, 1919

1. MUNICIPAL CORPORATIONS. Not liable for injuries to pedestrians from projection three inches above ground at street crossings.

Where in an action against a city by a pedestrian, the declaration alleged that plaintiff was injured while crossing at a regular street crossing, by striking her foot against a brick or stone which the city had permitted to remain firmly imbedded in the crossing and protruding two or three inches above ground, the court held that a demurrer to the declaration was properly sustained.

2 SAME.

In such case it will be presumed that the plaintiff stated her case in her declaration and she could not make by her evidence a stronger or different case than that stated in her declaration.

HON. D M. MILLER, Judge.

APPEAL from the circuit court of Pike county, HON. D. M. MILLER Judge.

Suit by Mrs. M. J. Pomes against McComb City. From a judgment for defendant, plaintiff appeals.

The grounds for demurrer mentioned in the opinion are as follows:

(1) The declaration in its entirety fails to state a cause of action against the defendant.

(2) A municipality is not required to keep its streets in perfectly safe condition.

(3) It is not negligent under the law for city authorities to knowingly permit a brick or stone protruding some two or three inches above the ground to remain in an unpaved street.

(4) That a brick or stone thoroughly embedded in the ground, and protruding some two or three inches above the ground, is not an obstruction in the contemplation of the law, which to be allowed or permitted to remain in the unpaved street is negligence.

And for other causes to be made known on the hearing.

Affirmed.

P. Z Jones, for appellant.

The defendant demurred to the declaration setting up among other contentions the following: It is not negligent under the law for city authorities to knowingly permit a brick or stone protruding some two or three inches above the ground to remain in an unpaved street. That a brick or stone thoroughly embedded in the ground and protruding some two or three inches above the ground is not an obstruction in the contemplation of the law which to be allowed or permitted to remain in the unpaved street is negligence.

This demurrer was sustained and from the judgment of the court sustaining this demurrer and dismissing the suit, the plaintiff prosecutes an appeal to this court. The error assigned is the action of the court in sustaining the demurrer. The action of the court in sustaining the demurrer and dismissing the declaration was at least in our judgment premature and a prejudging of the case without having the merits presented or considered.

Whether it is negligent or not for municipal authorities to allow and permit objects to extend up above the surface of streets street crossings or sidewalks would seem to depend largely on the kind of material used in their construction and maintenance. If sand and gravel is used, a different rule would prevail than where concrete has been used. A brick pavement or crossing would not be as smooth and even as one of macadam, or other such like material.

The demurrer erroneously assumes as an admitted and proven fact that the streets of McComb are unpaved and that the accident in question occurred on an unpaved street crossing. There is no allegation to this effect in the declaration and there is nothing in the record to show that such is the fact.

The rule seems to be that municipalities are required to keep their streets, sidewalks and crossings in reasonably safe condition for use by persons who will exercise reasonable and ordinary care. City of Meridian v. Crook, 109 Miss. 700, et seq.

Whether the municipality has complied with the law depends on the facts and circumstances and all of the surroundings and conditions which can only be ascertained by an investigation and hearing of the facts.

Should it develop that this accident occurred in the heart of the business section of the city where the travel is constant and a multitude of persons are accustomed to use the crossing daily, and that the obstruction at this particular point was dangerous to persons in the reasonable and ordinary use of the crossing, and using it with due and reasonable care for their own safety, then it occurs to us that it would be a question for the jury to determine from all of the evidence as to whether its existence was or was not due to negligence on the part of the city authorities.

Should it develop also that at this particular point the city had recently been engaged in street repairing, and had a portion of the street crossing torn up and reconstructed, or that the crossing had been repaired and the rubbish and debris were left in the crossing by servants and agents of the city, and left there for such a length of time as to become embedded in the street, and thus become a menace and source of danger to persons using the crossing, and that this unsafe condition had existed long enough for the city to know of it by the exercise of reasonable diligence, and that with such knowledge of the dangerous and unsafe condition of the crossing the city had permitted it to remain and continue in that unsafe condition, and the plaintiff without knowledge of this unsafe condition and while in the exercise of reasonable and the usual care in passing along over this crossing was injured and sustained damages, would it not be a question for the jury under all of the facts to say whether the city was liable on account of its negligence?

As said by this court, speaking through a former justice, in the case of Bell v. Railroad Company, 30 So. 821, and Stevens v. Railroad Company, 81 Miss. 206; "So many questions are integrated usually into the solution of the question of negligence--it is so necessary to examine all the circumstances making up the situation in each case--that it must be a rare case of negligence that the court will take from a jury."

A judge, sequestered from the ordinary man in the pursuit of his ordinary affairs in the rough and tumble game, is not prepared to say what is and what is not reasonable and proper care--does not have the same viewpoint as the rough and ready representative juror, taken from the surging, struggling crowd. In the Meridian case the facts were fully developed from these facts it appeared that there were a few loose bricks on a sidewalk. That the plaintiff in that case was in a hurry and did not notice. The plaintiff in the Meridian case was shown to be guilty of carelessness and negligence. She said that she was not on her guard. That if she had not been in a hurry she would have been on her guard. If it is the law that the pedestrian must use reasonable and ordinary care, one of the instructions...