Opinion
No. 39364.
November 22, 1954.
1. Negligence — instructions — contributory negligence.
In action for damages for personal injuries alleged to have been sustained by plaintiff as the result of stepping in a hole or depression in an alleged public walkway in which defendant had theretofore laid its gas main, plaintiff's requested instruction, that her contributory negligence, if any, would not bar recovery, was proper and should have been given, even though it did not contain a direction for diminishing damages, in accordance with applicable statute which provides for diminishing damages in proportion to injured person's negligence. Sec. 1434, Code 1942.
2. Trial — instructions — contributory negligence — duty to request.
In such suit, if defendant desired to avail itself of the statutory right to have the damages diminished in proportion to the negligence, if any, of the plaintiff, it was its duty to request the Court to so instruct the jury. Sec. 1454, Code 1942.
3. Appeal — contributory negligence — failure to grant instruction error.
In such suit, trial court's refusal to give plaintiff's requested instruction that her contributory negligence, if any, would not bar recovery, was clearly prejudicial to plaintiff, particularly in view of instructions granted defendant as to the effect of the negligence of the plaintiff. Sec. 1454, Code 1942.
Headnotes as approved by Holmes, J.
APPEAL from the circuit court of Jackson County; LESLIE B. GRANT, Judge.
Thomas J. Wiltz, Biloxi, for appellant.
I. The verdict of the jury was contrary to the overwhelming weight of the evidence and was such as to indicate passion, prejudice, and bias on the part of the jury. 27 Am. Jur., Sec. 49.
II. The Court erred in refusing Instruction No. Three for the plaintiff on the issue of liability and in refusing to direct a verdict for the plaintiff on this issue.
III. The Court erred in refusing Instruction No. Five for the plaintiff, thereby excluding from consideration by the jury the issue of the existence and maintenance of a nuisance vel non by the defendant. Bern v. Boston Consolidated Gas Co., 39 N.E.2d 576-7; Green v. State, 212 Miss. 846, 56 So.2d 12; Lepnick v. Gaddis, 72 Miss. 200, 16 So. 213; Morrison v. Rawlinson, 193 S.C. 25, 7 S.E.2d 635; Shoemaker v. Coleman, 94 Miss. 619, 47 So. 649; State v. Turner, 198 S.C. 487, 18 S.E.2d 372; Young v. Weaver, 202 Miss. 291, 32 So.2d 202; 39 Am. Jur. pp. 282, 304; 38 C.J.S. 727-9.
IV. The Court erred in refusing Instruction No. Nine for the plaintiff, reading as follows: "The Court instructs the jury for the plaintiff that in all actions brought for recovery of damages for personal injuries, the fact that the person injured may have been guilty of contributory negligence shall not bar a recovery." Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356; Alexander's Miss. Jury Instructions, Sec. 3499 p. 158.
V. The Court erred in refusing Instruction No. Ten for the plaintiff, reading as follows: "The Court instructs the jury for the plaintiff that in order for you to return a verdict for the plaintiff, it is not necessary for you to believe that the holes and depressions constituting the alleged nuisance as reflected by the evidence, were unlawfully or negligently maintained, but the jury is instructed that if you believe from the evidence that the holes and depressions, in fact, existed in the public way, were created, maintained and not corrected by defendant, and were such that were likely to cause injury to persons using the walkway in the exercise of ordinary care, and this fact should have reasonably been foreseen by the defendant in the exercise of reasonable diligence, and that as a proximate result thereof damage and injury has been caused to the plaintiff, then the jury should find for the plaintiff in sum as will reasonably compensate her for such damage as you find from a preponderance of the evidence she has sustained as a proximate result thereof."
VI. The Court erred in granting instruction for the defendant, reading as follows: "At the request of the defendant, the Court instructs the jury that if you believe from the evidence the plaintiff could have, in the exercise of reasonable care for her safety, used the place in Jackson Avenue where she fell, without injury to herself, and if you further believe from the evidence the plaintiff failed to exercise reasonable care for her own safety in the use of the said place and that failure, if any, is the sole proximate cause of her injuries, it is your sworn duty to return a verdict for the defendant."
VII. The Court erred in the exclusion of evidence from consideration by the jury relating to notice given the defendant in reference to conditions in the City of Ocean Springs of the nature of those causing the injury complained of, which notice would have served to, in fact, put the defendant on notice of the conditions or defects causing the injury complained of, or would have put it on notice of facts which would be tantamount to notice of the particular defects complained of. Parker v. Foy, 43 Miss. 260, 5 Am. Rep. 484; Stanley v. Stanley, 201 Miss. 545, 29 So.2d 641; 39 Am. Jur. pp. 241, 319.
VIII. The Court erred in entering judgment for the defendant and in failing to enter judgment for the plaintiff.
Wallace Greaves, Gulfport, for appellee.
I. Municipality not required to open entire width of avenue and set it apart for public travel. Gulfport Miss. Coast Traction Co. v. Manuel, 123 Miss. 226, 85 So. 308; Mississippi Power Co. v. Sellers, 160 Miss. 512, 133 So. 594.
II. Appellee, as municipality's licensee, only required to maintain unpaved shoulder of avenue in reasonably safe condition for use by persons exercising reasonable care and caution. Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L.R.A. 1916A, 482; Ming v. City of Jackson, 202 Miss. 260, 31 So.2d 900; 38 C.J.S., Sec. 39 p. 727.
III. Undisputed evidence shows appellant's injury did not result from her stepping in a hole or depression in walkway on west shoulder of avenue and she did not fall on that shoulder, as alleged in both counts of declaration. Therefore, there can be no liability upon the appellee for appellant's injury. Boggs v. Jewett, 127 Miss. 308, 90 So. 13; City of Meridian v. Crook, supra; City of Natchez v. Cranfield, 155 Miss. 540, 124 So. 656.
IV. Undisputed evidence shows that, even if appellant had fallen in walkway on shoulder of avenue, as alleged in both counts of declaration (which appellee denies), shoulder, including narrow strip used by appellee in its business, was reasonably safe for use by those exercising reasonable care and caution. Therefore, there can be no liability upon the appellee for appellant's injury. Birdsong v. City of Clarksdale, supra; City of Greenville v. Laury, supra; City of Meridian v. Crook, supra; Ming v. City of Jackson, supra; 38 C.J.S., Sec. 39 p. 727.
V. Undisputed evidence shows appellant fell and sustained her injury on slope of embankment in avenue. If appellee can be held to have been under any duty in respect of the maintenance of that slope, it could not have anticipated that appellant would use it as a walkway. Mauney v. Gulf Rfg. Co., 193 Miss. 421, 9 So.2d 780; Paramount-Richards Theatres, Inc. v. Price, 211 Miss. 879, 53 So.2d 21; Shuptrine v. Herron, 182 Miss. 315, 180 So. 620.
VI. Responses to brief for appellant. City of Meridian v. Crook, supra.
The appellant, Mrs. Minnie W. Mason, sued the appellee, the United Gas Corporation, in the Circuit Court of Jackson County for damages for personal injuries alleged to have been sustained as the result of stepping in a hole or depression in an alleged public walkway in Ocean Springs, Mississippi, in which walkway, the appellee had theretofore laid its gas main.
It was charged generally in the declaration that on April 1, 1947, the appellee procured from the City of Ocean Springs a franchise authorizing it to construct, lay, maintain, replace, and repair its pipes and lines in, under, and along public streets, sidewalks, public properties and other public places in the City of Ocean Springs. The franchise, particularly Section 3 thereof, which was exhibited to the declaration, provided that the appellee should so construct and maintain its said lines and pipes "as not to interfere unreasonably with the traffic over the public thoroughfares of said city," and further provided that in laying or repairing its gas mains, the appellee should repair and restore, without cost to the city and within a reasonable length of time, the streets, public ways, etc., "to a condition as nearly as practicable as that which existed prior to the laying or repairing of the gas mains and pipes."
The declaration was in two counts. The first count was predicated upon negligence in that it was alleged that the appellee had laid its gas main in the west shoulder of Jackson Avenue, a paved street, which shoulder was used generally by the public as a walkway or sidewalk, and that the appellee had negligently failed to restore said walkway to a condition as nearly as practicable as that which existed prior to the laying of the gas main, and that as a direct and proximate result thereof, the appellant, while using a portion of said walkway in front of her property, stepped into a hole or depression and was caused to fall, resulting in a painful injury to her right ankle which incapacitated her for sometime, resulting in loss of wages amounting to $301.00, and a doctor's bill amounting to $25.00, and damages for her injury, pain and suffering, etc., in the amount of $2,500.00. She demanded damages in the first count in the total sum of $2,826.00.
The second count of the declaration was predicated upon the charge that the appellee, in making the excavation in the walkway for the laying of its main, and in failing to restore the premises to a condition as nearly as practicable as that which existed prior thereto, and in failing to maintain the walkway in which it had laid its main in a condition reasonably safe for use by persons using the same in the exercise of ordinary care, had created a public nuisance, and, without regard to negligence vel non, it had rendered itself liable to the appellant for damages for her resulting injuries, demanded in the sum of $2,500.00.
At the conclusion of the introduction of evidence, both the appellant and the appellee requested peremptory instructions, which requests were refused by the trial court. The submission of the case to the jury resulted in a verdict for the appellee and judgment was entered accordingly. From this judgment, the appellant prosecutes this appeal.
(Hn 1) The appellant has assigned a number of grounds for the reversal of the judgment of the court below, including complaints with respect to the ruling of the trial court on requested instructions and the admissibility of evidence. We have carefully considered the assignments presented by the appellant and are of the opinion that none of them possess merit with the exception of the assignment that the trial court erred in refusing the appellant's request for the following instruction:
"The court instructs the jury for the plaintiff that in all actions brought for recovery of damages for personal injuries, the fact that the person injured may have been guilty of contributory negligence shall not bar a recovery."
This instruction was proper and should have been granted. Illinois Central Railroad Co., et al, v. Archer, 113 Miss. 158, 74 So. 135; Alexander's Mississippi Jury Instructions, Sec. 3499. A notation by the trial judge on the refused instruction indicates that he refused it upon the ground that it contained no direction for diminishing damages in accordance with the provision of Sec. 1454 of the Mississippi Code of 1942. The requested instruction, however, did not preclude the jury from diminishing damages in accordance with the statute, and the appellant was not required to incorporate in the requested instruction a direction for the diminishment of damages in accordance with the provisions of the statute. (Hn 2) If the appellee had desired to avail itself of the statutory right to have the damages diminished in proportion to the negligence, if any, of the appellant, it was its duty to request the court to so instruct the jury. Morrell Packing Company, et al v. Branning, 155 Miss. 376, 124 So. 356. (Hn 3) The refusal of the instruction was clearly prejudicial to the appellant, particularly in view of the instruction granted to the appellee as to the effect of the negligence, if any, of the appellant.
The refusal of this instruction, in our opinion, constitutes reversible error. It follows, therefore, that the judgment of the court below must be, and it is, reversed and the cause remanded.
Reversed and remanded.
McGehee, C.J., and Hall, Lee and Ethridge, JJ., concur.