Stainback v. City of Meridian

• Decision Date: 26 November 1900
• Citation: 28 So. 947,79 Miss. 447
• Court: Mississippi Supreme Court
• Parties: IDA STAINBACK v. CITY OF MERIDIAN. [*]

28 So. 947

79 Miss. 447

IDA STAINBACK v. CITY OF MERIDIAN. ^[*]

Supreme Court of Mississippi

November 26, 1900

October 1901

FROM the circuit court of Lauderdale county H N. GUION Q. HALL Judge.

Ida Stainback, a schoolgirl, the appellant on the first appeal and the appellee on the second one, was the plaintiff in the court below; the city of Meridian was defendant there. The declaration alleges that for some years before March 7, 1898 the streets and avenues, where the accident is alleged to have happened, were streets and avenues in the city of Meridian, and that it was the duty of the defendant, as a municipal corporation, to keep and maintain the streets and sidewalks in a proper and safe condition for use of pedestrians passing over and along said streets and avenues that the accident occurred on Fourteenth street, between Seventeenth and Eighteenth avenues, and that said street and avenues run through a thickly settled portion of the city and are much used by persons on foot in passing from one portion of the city to another; that for some years before March 7, 1898 (the date of the accident), Fourteenth street between Seventeenth and Eighteenth avenues, had traversing it, at a point between Seventeenth and Eighteenth avenues, a large drain, or ditch, over which the defendant maintained a wooden bridge, or cover, which was used by pedestrians and vehicles passing along the streets; that some six or eight months before the happening of the injury the defendant had moved said wooden bridge, and had excavated and enlarged the ditch where it crosses Fourteenth street; that the excavation extended in width eight or ten feet, and in depth ten or twelve feet, and that after the ditch was excavated the defendant walled it up from one side to the other with stone; that the defendant, well knowing that said street had been and was used daily as a public thoroughfare in the city of Meridian by persons passing along that portion of the city on foot and in vehicles, and the defendant well knowing that the street at said point was especially used by school children attending the schools of the city on foot, and upon the completion of said excavation, and upon having the same walled up with stone, in order to provide for foot passengers passing along the street, carelessly and negligently caused one or two planks, of the width each of ten or twelve inches, to be laid across the ditch as and for a walkway; that the city carelessly and negligently failed and refused to have the planks so laid across the ditch fastened at either end, and carelessly and negligently refused to place any guard rail or other protection whatsoever around or about the planks, and carelessly and negligently failed and refused to place any bridge over the ditch or other cover, and failed and refused, carelessly and negligently, to provide any other means of passing along the street and over the ditch, and that the walkway, so intended for persons passing along the street, was carelessly and negligently constructed, and that the same was unsafe and dangerous, but that the plaintiff, an infant, in passing along the street, and in going or returning from school, not knowing of the unsafe or dangerous condition of the walkway, undertook to cross over said ditch, when, without any negligence on her part, and after she had proceeded in and upon the walkway, the plank careened and turned over to one side, precipitating the infant, plaintiff, violently down some twelve or fifteen feet, into the ditch, and upon the hard stone therein, whereby, and in consequence thereof, the infant, plaintiff, was grievously hurt, bruised, and wounded, etc. To this declaration a demurrer was interposed by defendant, setting up, among other grounds of defense, the following: That the declaration does not show any negligence on the part of defendant such as constitutes a cause of action against it, and that the declaration shows such contributory negligence on the part of the plaintiff as to debar her from recovery. The demurrer was sustained by the court below and plaint...