Carver v. City of Jackson

Truly, J., delivered the opinion of the court. This is a suit for damages for personal injuries said to have been incurred by reason of the negligence of the city of Jackson on account of a defective bridge — a crossing upon a public street of said city. The principles of law governing such cases in this state are plain, simple, and free from doubt. ' We quote, to approve and indorse, the language of this court in the case of Nesbitt v. City of Greenville, 69 Miss., 22, 10 South., 152, 30 Am. St. Rep., 521: “Ordinary care over its streets is the measure of diligence imposed upon municipal corporations, and they are not insurers against injury to persons using the public streets. We do not dissent, from the elementary principle that, before the municipality can be held liable for injuries resulting from nuisances or defects in its streets, it must have knowledge of the nuisance or defect, and its danger. Notice there must he, to charge the municipality, but this notice may be actual or constructive or implied. Where the obstruction is created by the city itself, or where it permits an obstruction erected by another in its streets, it must take notice of such defects in the obstruction as ordinary care will discover. The structure in a street, to every part of which the public has the right of free access, must be erected in such manner and from such materials as to he reasonably safe, and it must be kept in this safe condition. Proper repairs, from time to time, are as much the duty of the city as a safe structure originally. Inseparably connected with this statement is another, viz.: that a municipality [588] is liable for injury resulting from its defective structures, where by reasonable diligence it might have acquired knowledge of such defect. The common knowledge of mankind is chargeable to a municipality also. The knowledge of the action of the.elements on structures of wood, and of the liability of timber to decay under certain conditions, is to be attributed to municipalities, just as to natural persons. The duty of the municipality to exercise ordinary care to detect such natural -decay, and to guard against injuries therefrom, follows necessarily.” And in the case of Stainback v. City of Meridian, 79 Miss., 447, 28 South., 947, 30 South., 607, on first appeal, it is announced: “It is actionable negligence for a city to remove a bridge over a ditch in a densely populated district, and provide and maintain, for the passage of pedestrians over the same, insecure planks, which careened when plaintiff, an infant, went upon them, causing her to fall and suffer injury, she being wholly without fault or knowledge of the insecurity of the plank passageway so provided for the use of herself and others by the city.” In the case' at bar the foregoing propositions of law were correctly announced by the court in its instructions for plaintiff and defendant. In the light of the evidence in this case, we do not think that the instructions for plaintiff are open to the criticism of counsel for appellant. The facts, as developed upon the trial, show that on Sunday morning, December 23, 1900, the appellee, with two others, in the lawful and usual use of the streets, while on her way to the depot in the city, walking down the said walk in the manner usual for pedestrians, came to the bridge at which the injury is said to have occurred. One of her companions crossed in safety, but while the appellee was still on the crossing the other of her companions stepped on the plank, and their combined weight caused the plant to give way, and the bank of the ditch over which the plank was laid to cave, so that appellee was turned into the [589] ditch, struck by one of the planks, and, as she avers, severely injured. It appears that the city of Jackson was engaged in installing a municipal sewerage system, and in the prosecution of this work it became necessary to dig trenches over all of the streets where the sewer pipes were to be placed. At night it was the custom, wherever one of these ditches or trenches crossed a public sidewalk, to erect a temporary bridge or crossing for the use of pedestrians. These temporary bridges were built by placing upon the ground three or four planks, side by side. At the particular bridge where the injury is said to have happened, this was the manner in which the crossing was built. It is in testimony that at this particular place the ground was not level, one bank of the trench being somewhat higher than the other. It is also in evidence that at this particular place the surface of the ground was covered with a layer of cinders, which, according to the testimony of some of the witnesses, rendered the bank more liable to cave. It seems that there was no effort made to fasten the planks in any way. They were simply placed upon the ground. No effort was made to dig a bed for the ends of the planks, or to level the opposite banks of the trench so that the planks might lie smoothly. There was considerable testimony as to the caving of the banks of these sewer trenches in various parts of the city, one witness testifying that at the place of the alleged accident the hanks had caved until the trench was nearly or quite twice as wide as when built. It is further in testimony that at this particular crossing the planks only reached from six to eight inches on each side of the trench; that they could be moved without any trouble; that a citizen living near the crossing had complained of the dangerous condition of the crossing to the foreman of the crew working in that section of the city. These facts, or many of them, were controverted by witnesses for the appellant; but -the issue of fact was fully presented to the jury, and by the jury decided adversely to the appellant. We are not prepared to say that [590] the verdict is not supported by the testimony. True it is that the courts have said that notice must be shown to have reached the municipality, but in the case at bar there is not an absence of proof that direct complaint was made to the city, and it was for the jury to pass upon the credibility of this witness. But aside from the testimony of the actual notice to the city, was it not charged, under the law, as stated in the Nesbitt Case, supra, to use ordinary diligence in ascertaining for itself the condition of the crossing ? It was said in the Nesbitt Gase that “the knowledge of the action of the elements on structures of wood, and of the liability of timber to decay under certain conditions, is to be attributed to municipalities just as to natural persons.” In this case is not knowledge of the action of elements on the banks of trenches to be attributed to the municipality ? Is it not chargeable with the knowledge that continued rains will render the perpendicular banks of a trench liable to cave; that planks unfastened, lying loose upon the uneven surface of the ground, are liable to slip or give way under pedestrians who by the action of the city are invited to use such crossings ? We think the same rule applies. It is in testimony here by the appellant’s witnesses that many persons daily crossed at this place in safety. "Under the rule in the Stainbach Gase, above cited, was it not negligence in the city to allow this condition to exist without using ordinary prudence in maintaining the safety of the crossing? We think the testimony fully warrants the verdict of the jury for the appellee. The jury assessed damages in the sum of $1,000. The plaintiff was an old lady, sixty-three years of age, at the date of the injury. She had been making her living as a nurse. Her testimony, and all of the testimony for appellee, as to the extent and duration of her injuries, is vague and uncertain. From a careful consideration of this record, we are forced to the conclusion that the jury allowed a feeling of sympathy for an aged and dependent woman to lead them into awarding more than [591] the strictly compensatory damages which the law warrants. Krom the facts before ns, without intending to establish any precedent, but looking only to the facts of this particular case, we think the verdict was excessive. Wherefore, if the appellee will enter a remittitur for $2,000, the judgment will be affirmed; otherwise reversed and remanded.