Saxon v. Town of Houlka

• Decision Date: 18 May 1914
• Court: Mississippi Supreme Court
• Parties: T. F. SAXON v. TOWN OF HOULKA

65 So. 124

107 Miss. 161

T. F. SAXON v. TOWN OF HOULKA

Supreme Court of Mississippi

May 18, 1914

March 1914

APPEAL from the circuit court of Chickasaw county. HON. H. F. MAHON Judge.

Suit by T. F. Saxon against the town of Houlka. From a judgment for the defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Case reversed.

Joe H Ford, for appellant.

Counsel for appellee gives briefly four reasons why he contends this case should be affirmed. I shall make a few observations in reply taking them up serially. 1. The first he gives is that appellant knew that the street he was traveling at the time of the injury, was in a defective condition and was very dangerous. I submit to the court that the record does not support this statement that he knew it was very dangerous. The record shows, as pointed out in my original brief, that he knew that it was defective in the sense that there was a mud-hole there but he denied, from start to finish, that he knew there was any danger lurking there. In fact, it was not contended, at the trial below, that appellant knew of the danger, but that knowing of a defect in the street, he must use extraordinary care to avoid the defect or any possible danger resulting from any such defect, disregarding entirely the well-settled rule of law that plaintiff was only required to use ordinary care commensurate with his knowledge of the defect. He knew nothing on earth about the existence of the dangerous trap into which he fell and could not see it with his natural eye.

2. It was not contended, for one moment in the trial of this case in the court below that plaintiff was not exercising ordinary care at the time he sustained the injury complained of, but simply that the law required him to use extraordinary care where he knew of the defect, whether he knew of its dangerous character or not, and the court excluded the testimony and dismissed the case, on the specific ground that, knowing there was a defect in the street at this place, he did not show, from the testimony, that he used extraordinary care to avoid possible danger. Counsel cites the case of Vicksburg v. Hennessy, 54 Miss. 391, to save his case from reversal. That case is not in point here because there it was shown that the city had provided a safe means of avoiding danger to a traveler of its street, and that Hennessy, knowing of the means so provided, neglected to use it and was injured in consequence of such failure. Such is not the case here, for it is shown that, although this danger had existed for months before the injury, and that it was well known to the town authorities, they had persistently failed, and even refused, to have the defect repaired, or to provide any means by which the public could avoid it in traveling until after the injury, when they made haste to perform their duty of which they had been so long neglectful.

3. Counsel seeks to perpetrate, upon this court, the huge joke that plaintiff cannot recover because proof was not introduced to show that the town of Houlka is an incorporated municipality. That was not an issue in the lower court at all; the defendant pleaded to the declaration as such. The proof shows they had a mayor and board of aldermen. The last witness introduced testified that he was its present mayor the proof shows that W. T. Turner was the mayor of the town at the time the injury was sustained and had, himself narrowly escaped a serious accident in this same place in the street just a few days before the plaintiff sustained his injury. All the proof shows that the injury was sustained by plaintiff while traveling on a public street of the "town of Houlka. " It was not necessary that plaintiff procure the proclamation of the governor to be introduced to show that it was a municipal corporation, or to offer any other evidence to that effect, where there was no such issue involved in the case. That fact was charged in the declaration and not denied by defendant but was, in fact, confessed by it when it pleaded to the declaration in that capacity. However, if proof was necessary, on the trial, to show that it was a municipality, undoubtedly in this case, it was shown.

4. It was shown that the defect and dangerous character of the street, at the place where this injury was sustained, had existed for some months and that the mayor of the town, just a few days before this injury, had fallen into the very hole the plaintiff fell into, and barely escaped a similar misfortune. It was not for one moment contended by the appellee in the court below that this dangerous condition of the street was unknown to the officials of the town. The town board had been applied to to have the place fixed so that it would be passable and safe. The case of Cohea v Coffeeville, 69 Miss. 561, cited by counsel,...