Opinion
No. 39855.
January 9, 1956.
1. Municipalities — automobile striking hole in street and allegedly thereby thrown against pedestrian — streets — proximate cause — jury question.
In action by pedestrian against city for injuries sustained when automobile, which struck hole in street, allegedly was thereby thrown against pedestrian, question whether or not the street was in such bad condition, due to failure of city, after due notice, to exercise proper care to keep the same in reasonable repair, as to constitute the proximate or contributing cause of the accident complained of was for jury.
2. Municipalities — evidence — jury warranted in believing automobile struck hole in street and was propelled against pedestrian who was using due care.
In such case, jury was warranted in believing from the evidence that pedestrian was walking on or near shoulder of street and that when automobile struck hole, it was caused to be diverted from its course, or sufficiently to the right, as to strike pedestrian at a time when she was exercising reasonable care for her own safety.
3. Negligence — use of shoulder or side of street by pedestrian — not proximate cause.
Where pedestrian, who intended to travel only very short distance from her house to bus stop at first street intersection, could have crossed street in front of her house and walked on left side of street, pedestrian's failure to do so was not proximate cause of injuries when automobile struck her as she was walking along right side of street.
4. Municipalities — streets — negligence in maintaining — where automobile struck hole in street and was propelled against pedestrian.
City was guilty of negligence in maintaining its street so as to render it liable for injuries to pedestrian walking on or near right shoulder on street, when automobile struck hole in street and was caused to be diverted in its course, or sufficiently to the right, as to strike pedestrian causing injuries sustained.
5. Trial — instructions — considered as a whole.
Instructions given were, when considered as a whole, sufficient to fairly and correctly present the law of case to jury.
6. Damages — award — not excessive.
Award of $5,839 to woman who sustained broken leg was not excessive in view of resulting pain, suffering and disability.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Harrison County; LESLIE B. GRANT, Judge.
Albert Sidney Johnston, Jr., Biloxi, for appellant.
I. Appellee's declaration fails to state a cause of action, and appellant's demurrer should have been sustained. Pomes v. McComb City, 121 Miss. 425, 83 So. 636; Gulfport Miss. Coast Traction Co. v. Manuel, 123 Miss. 266, 85 So. 308; Walker v. Vicksburg, 71 Miss. 899, 15 So. 132; Butler v. Oxford, 69 Miss. 22, 10 So. 452, 30 Am. St. 521; Public Service Corp. v. Watts, 168 Miss. 235, 150 So. 192, 194.
II. Appellant was entitled to a peremptory instruction, and the error in failing to grant such instruction must result in a reversal of this cause. Avery v. Collins, 171 Miss. 636, 157 So. 195, 158 So. 552; Bond v. McDevitt, 163 Miss. 226, 140 So. 722; Basque v. Anticich, 177 Miss. 855, 172 So. 141; Evans Motor Freight Lines v. Fleming, 184 Miss. 808, 185 So. 821; Public Service Corp. v. Watts, supra.
III. The Trial Court committed error in not sustaining appellant's motion for judgment non obstante veredicto.
IV. Appellant was, to say the least, entitled to a new trial, and appellant's motion should have been sustained.
V. Reversible error was committed in granting appellee's instructions. Public Service Corp. v. Watts, supra; McIntyre v. Kline, 30 Miss. 361, 64 Am. Dec. 163; Lombard v. Martin, 39 Miss. 147; Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288; Cochran v. Peeler, 209 Miss. 394, 47 So.2d 806; Gulf, M. O. RR. Co. v. Smith, 210 Miss. 768, 50 So.2d 898; Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So.2d 902; J.W. Sanders Cotton Mill v. Moody, 189 Miss. 284, 195 So. 683; Dixie Stock Yard v. Ferguson, 192 Miss. 166, 4 So.2d 724; Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 693; Rawlings v. Inglebritzen, 211 Miss. 760, 52 So.2d 630; Harris v. McCullen, 212 Miss. 382, 54 So.2d 544; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461.
VI. Reversible error was committed by the Trial Court in refusing appellant's requested instructions. Public Service Corp. v. Watts, supra; J.J. Newman Lbr. Co. v. Boggs, 146 Miss. 440, 111 So. 562; Crow v. Burgin (Miss.), 38 So. 625; Murphy v. Burney (Miss.), 27 So.2d 773.
Morse Morse, Gulfport; Rushing Guice, Biloxi, for appellee.
I. The verdict of the jury and judgment of the Court below were amply supported by the law and the evidence. Pomes v. McComb City, 121 Miss. 425, 83 So. 636; Gulfport Miss. Coast Traction Co. v. Manuel, 123 Miss. 266, 85 So. 308; Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42; Public Service Corp. v. Watts, 168 Miss. 235, 150 So. 192; Avery v. Collins, 171 Miss. 636, 157 So. 695.
II. There was no error in instructions. Brewer v. Town of Lucedale, supra; City of Laurel v. Hutto, 220 Miss. 253, 70 So.2d 605; Public Service Corp. v. Watts, supra.
The appellee, Rebecca Armistead, recovered a judgment for $5,839 as damages against the appellant, City of Biloxi, because of a serious personal injury sustained by her while she was walking on or near the edge of the shoulder of Lee Street in the City of Biloxi and was struck by an automobile, the driver of which was unknown.
The theory upon which she claimed that the appellant was liable for the accident was the fact that there were holes washed out or worn into the hard-surfaced street, which allegedly caused the automobile to be thrown against and to run over her when it struck one of such holes.
The witnesses both for the plaintiff and defendant testified about the bad condition of the street by reason of the holes in the hard surface thereof. The witnesses for the plaintiff and for the City only disagreed as to the size of the holes in the pavement. The only question presented here for decision is whether or not the street was in such bad condition, due to the failure of the City to exercise the proper care to keep the same in reasonable repair, as to constitute the proximate or contributing cause of the accident in question.
(Hn 1) The evidence is abundant that the City knew of the defective condition of the street, and that there were numerous holes in the hard surface thereof in the location where this accident occurred. The plaintiff's witnesses said that the holes were so numerous that a motorist could not avoid running into them, whereas some of the witnesses for the City seem to think that a motorist could have "dodged" the hole which the plaintiff says was struck by the unknown driver on the occasion complained of. In other words, the testimony was conflicting as to whether or not the holes were sufficiently numerous and large as to have caused the automobile to have been diverted from its course to such an extent that it struck the plaintiff and caused the injury complained of. Some of the witnesses said that the hole was approximately nine inches deep, and the plaintiff testified that it was large enough for her to fall back into after being struck by the automobile.
(Hn 2) Plaintiff lived on the west side of Lee Street, and had walked along the edge of the street on that side from her residence, a distance from 70 to 100 feet, in going to catch the bus at an intersection to the south, when she was struck by the automobile. The jury was warranted in believing from the evidence that she was walking on or near the shoulder of the street, since she admitted that she had seen the automobile coming from the north, and it was presumably on the right or west side of the street. We also think the jury was warranted in believing that when this automobile struck the hole, it was caused to be diverted in its course, or sufficiently to the right, as to strike the plaintiff at a time when she was exercising reasonable care for her own safety. (Hn 3) Of course, she could have crossed the street in front of her house and walked toward the south on the east edge thereof, there being no sidewalks on either side of this street, but she intended to travel only a very short distance from her house to the bus at the first street intersection below, and her failure to cross over to the left side of the street was not the proximate cause of the injury complained of.
(Hn 4) We think that the case is controlled in favor of the plaintiff by what was said in the case of Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42, (Hn 5) and the decisions therein cited; that the instructions, when considered as a whole, were sufficient to fairly and correctly present the law of the case to the jury; (Hn 6) and that the amount of the verdict is not in the least excessive in view of the pain, suffering, and disability caused by the plaintiff's leg being broken in the accident. We are therefore of the opinion that the judgment of the trial court should be affirmed.
Affirmed.
Hall, Kyle, Holmes and Gillespie, JJ., concur.