Birdsong v. Town of Mendenhall

Mayes, O. J., delivered the opinion of the court. It is time that Birdsong testifies that he has been a resident •of the town of Mendenhall for three years or more, and that before going upon the street in question he knew of its dangerous condition at the point where he sustained the injury; but this was not sufficient to preclude a recovery against the town for the injury sustained. Of course, his knowledge of the condition •of the street was a factor in the case for the consideration for the jury in determining whether or not, in view of this knowledge, he was exercising the ordinary prudence at the time interpreted in the light of his knowledge. Citizens of a town are not prohibited from the use of a street or sidewalk by the mere fact that the authorities have allowed it to get into a defective ■condition, even when they know the street is defective; but they [548] may continue to use the street unless its defect consists in such bad state of repair as makes the very use of the street, with the knowledge, however great the care exercised, attendant with great danger. This is not a case where there should have been a peremptory instruction for the defendant; but it should have gone to the jury. It was not shown that the condition of the street, of which Birdsong had knowledge, made the danger in its use so imminent and threatening that a prudent man, knowing of its existence, would not assume the risk of walking on the street when exercising ordinary care. Birdsong testifies that he was> in the exercise of proper care at the time he received the injury,, and this testimony, under the facts, necessarily carried the case to the jury. The question is, not whether Birdsong used the street knowing its condition, but whether or not, knowing its condition, he exercised the proper care to protect himself from harm by its use. Reversed and remanded.