Rosenbaum Realty Co. v. Tolbert

• Decision Date: 15 March 1926
• Docket Number: 25494
• Citation: 107 So. 422,142 Miss. 710
• Court: Mississippi Supreme Court
• Parties: ROSENBAUM REALTY CO. et al. v. TOLBERT. [*]

107 So. 422

142 Miss. 710

ROSENBAUM REALTY CO. et al. v. TOLBERT. ^[*]

No. 25494

Supreme Court of Mississippi

March 15, 1926

Division A

MUNICIPAL CORPORATIONS. Owner of building from which came water on sidewalk, in which pedestrian fell, is not liable without showing of negligence.

Recovery by one stepping and falling in water on sidewalk, is not warranted by mere showing that it came from defendants' building; but it must be shown to have been negligently caused or permitted to flow therefrom, and by a person for whose acts they are responsible.

HON. R M. BOURDEAUX, Judge.

APPEAL from circuit court of Lauderdale county, HON. R. M BOURDEAUX, Judge.

Action by Mrs. M. I. Tolbert against the Rosenbaum Realty Company and others. Judgment for plaintiff, and defendants appeal. Reversed and judgment rendered.

Reversed.

Jacobson & Brooks, for appellants.

This case should be reversed and a judgment rendered here for the appellants. When the plaintiff fails to make out a case, the trial court should grant a peremptory instruction to the defendant. The appellee claims to have sustained injuries from having slipped upon a wet sidewalk in front of the entrance to appellants' building and that seems to be the only reason why she was awarded damages. The verdict is not based upon negligence on the part of the defendant, because there was none whatever, and every idea of negligence on the part of the appellants is a mere inference or surmise, not based upon any facts proved in the case.

There is no attempt to prove that the appellants or their agents put the water in the lobby at the time the appellee said it was coming from the lobby. It must be remembered that the entrance to the Rosenbaum Building is used by the public at large in going into the building, and if it be a fact that water came from the entrance at the time, it may have been spilt or put there by some other person than the appellants or their agents, and there is no proof whatsoever as to who put it there, nor how long it remained there so as to charge the appellants even with notice thereof. Without proof that the appellants caused the water to be on the pavement and that the water being upon the pavement was the proximate cause of the accident, the appellee cannot legally recover against the appellants. 29 C. J., sec. 443, p. 679.

We call the court's attention to the following cases in which the duty of the appellants therein was a much higher duty than that which the appellants owed to the plaintiff in this case because these cases refer to injuries occurring on the property of the defendant, while in the case at bar the accident was sustained in front of defendants' or appellants' property, as alleged by the appellee or plaintiff, and for which, to our minds, the defendants could not have been liable, unless they placed the obstacle there that proximately caused the plaintiff or appellee to be injured. DeVelin v. Swanson et al., 72 A. 388 (R. I.); Goddard v. Boston & M. R. Co., 60 N.E. 468; Thompson Gro. Co. v. Phillips (Colo., 1912), 125 P. 563; Norton v. Hudner, 213 Mass. 257, 100 N.E. 546, 44 L. R. A. (N. S.) 79; Town of Union v. Heflin, 104 Miss. 669; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290.

This case should be reversed and judgment rendered here for appellants.

Charles B. Cameron, for appellee.

The appellants contend that the court should have granted it a peremptory instruction. The appellee testified that the water and slippery substance came out of the entrance to the Rosenbaum Building. But the appellants say that the court erred because there is no testimony...