White v. Thomason

• Decision Date: 14 April 1975
• Docket Number: No. 48000,48000
• Citation: 310 So.2d 914
• Parties: Alfred WHITE and the City of Vicksburg v. Doris THOMASON, a minor, by Mrs. John A. Thomason.
• Court: Mississippi Supreme Court

Page 914

310 So.2d 914

Alfred WHITE and the City of Vicksburg v. Doris THOMASON, a minor, by Mrs. John A. Thomason.

No. 48000.

Supreme Court of Mississippi.

April 14, 1975.

Watkins & Eager, Velia Ann Mayer, P. N. Harkins, III, Jackson, Ramsey, Bodron & Thames, Vicksburg, for appellant.

Prewitt & Braddock, J. Mack Varner, Vicksburg, for appellee.

Before PATTERSON, SMITH and BROOM, JJ.

BROOM, Justice.

An automobile collision beneath a malfunctioning traffic control device at an intersection resulted in appellee's (plaintiff's) personal injuries which were the subject of her tort action tried in the Circuit Court of Warren County, Mississippi. Trial resulted in a $30,000 verdict against both appellants but a remittitur of $7500 was ordered by the lower court and accepted by appellee. We reverse.

The chief issues pertain to (1) the sufficiency of evidence, (2) admissibility of a city ordinance into evidence, and (3) jury instructions.

The following facts are established by the record. On August 2, 1971, the appellee, a minor, was driving a 1970 Maverick automobile south on Farmer Street in Vicksburg, and collided with a Chrysler automobile being driven east on Openwood Street by appellant White. The appellee (accompanied by three other minor students) was en route to school when the collision occurred within the intersection of the two streets. Hanging above the intersection was a four-sided tricolored traffic signal device, but the red light was inoperable to eastbound traffic (including appellant White) on Openwood.

Appellee's version was that as she approached the intersection while traveling south on Farmer Street, she had a green light and saw no vehicles approaching the intersection on Openwood. Her speed was approximately twenty to twenty-five miles per hour and she said that she slowed at the intersection, looked both ways, and then proceeded into the intersection and was underneath the light when she heard a scream from her sister, one of her passengers. The forward or front portion of the right side of her vehicle was struck by the front portion (left front) of appellant White's vehicle.

White testified that he saw that the red light facing him (as he entered the intersection from Openwood Street) was not functioning and that as he neared the intersection he slowed down and looked both ways. Seeing no vehicles approaching, he said that he proceeded into the intersection and was struck by the appellee's vehicle.

I.

We first consider the argument that the evidence adduced was not sufficient to properly withstand motions for a directed verdict and peremptory instruction.

As to which signal light was inoperable or malfunctioning, and as to how long such defect had been existing prior to the wreck which occurred on Monday, the record is replete with confusion and contradiction. Some of the testimony indicated that not only was the traffic light malfunctioning as to vehicles entering the intersection from the west on Openwood Street, but also that the traffic lights were out or not properly functioning when viewed from the north while traveling south on Farmer Street. Portions of the testimony indicated that the defect or malfunctioning of the traffic light had been in existence only one day prior to the accident. However, the appellee's witness Traxler clearly and without equivocation testified that on Thursday prior to the accident on Monday, he observed that the red signal light was not functioning as to traffic entering the intersection from the went on Openwood Street. This was the direction traveled by appellant White in this case at the time of the collision. Traxler further testified that to his knowledge the defect had not been repaired up until the time of the wreck.

It is argued on behalf of the city that the appellee failed to establish that the city was negligent or that its negligence caused or contributed to the collision which resulted in appellee's injuries. Additionally, the city contends that there was no proof that the city had notice that the traffic fixture was out or malfunctioning for a sufficient length of time prior to the accident to give rise to an inference of negligence or that the city failed to carry out reasonable inspections. The city also argues that the sole proximate cause of the collision was the concurring negligence of the two drivers and that, therefore, the proof did not make out a sufficient case for consideration by the jury.

The rule is well established that maintenance by a municipality of an overhead traffic control light at a street intersection is a proprietary function which must be conducted with at least ordinary care. Tucker v. City of Okolona, 227 So.2d 475 (Miss.1969). In order for a municipality to be liable in a case of this type, it is not necessary that the city have actual notice of the defective light. Constructive notice of the defect may be sufficient and whether a municipality had notice, actual or constructive, is ordinarily a question for the jury. 63 C.J.S. Municipal Corporations § 943e (1950). In City of Cleveland v. Threadgill, 246 Miss. 23, 148 So.2d 670 (1963), the court stated that whether or not a defect has existed for sufficient time to constitute constructive notice is a jury question. The court in City of Greenville v. Middleton, 124 Miss. 310, 86 So. 804 (1921), held that a defect or hole in a bridge shown to exist four days prior to an accident created a jury question as to whether constructive notice is to be attributed to the municipal authorities. See 63 C.J.S. Municipal Corporations § 943e (1950).

In deciding whether a directed verdict or peremptory instruction should be granted, the trial judge is to look solely to the testimony on behalf of the party against whom a directed verdict is requested. He will take such testimony as true along with all reasonable inferences which can be drawn from that testimony which is favorable to that party, and, if it could support a verdict for that party, the directed verdict should not be given. If reasonable minds might differ as to this question, it becomes a jury issue. Williams v. Weeks, 268 So.2d 340 (Miss.1972); Jones v. Phillips, 263 So.2d 759 (Miss.1972). Applying the rationale of the cited cases to the case before us, we think the trial court properly submitted the case to the jury.

II.

Whether the court erred in not admitting into evidence a certified copy of a Vicksburg city ordinance is the next question before us. Profert of the ordinance was made by appellant White without his or the other appellant having specifically pleaded the ordinance. At the time profect of the ordinance was made, the appellee had admitted that she was driving at a speed of twenty-five to thirty miles per hour. It is noteworthy that the applicable speed limit at the place in question was twenty miles per hour pursuant to the ordinance in question.

The general rule is that courts do not take judicial notice of municipal ordinances. Kyle v. Town of Calhoun City, 123 Miss. 542, 86 So. 340 (1920). It is also the rule in this jurisdiction that affirmative defenses cannot be relied upon unless specially pleaded. Miss.Code Ann. § 11-7-59(4) (1972); Seals v. St. Regis Paper Co., 236 So.2d 388 (Miss.1970); Niles v. Sanders, 218 So.2d 428 (Miss.1969); Myrick v. Holifield, 240 Miss. 106, 126 So.2d 508 (1961).

The following extract from the record shows the unusual nature of what actually occurred with reference to the...