City of Meridian v. Crook

Stevens, J., delivered the opinion of the court. Mrs. L. Crook, appellee brought this action of damages against the city of Meridian, appellant, for personal injuries alleged to have been received by appellee as a result of a fall on one of the sidewalks of said municipality. Appellee lived in the western part of the city, near Davis street, on which there was a brick sidewalk about three feet in width. About six thirty o’clock on a November evening in 1911, she had occasion to make a hurried trip to a suburban store, located at the corner of Davis street and Thirty-Eighth avenue, to purchase a can of condensed milk for some hungry and crying babies. After purchasing the milk, and while retracing her steps to her home on the south side of Davis street, she stepped into a depression in the sidewalk and fell, receiving the injury for which she claims damages. The evidence shows that the injury occurred just after dark, and when, according to appellee’s testimony, there were no lights burning on Davis street at or near where the injury occurred. There is evidence that an-electric street light was stationed at the corner of Davis street and Thirty-Ninth avenue, and also at the corner of Davis street and Thirty-Eighth avenue, and that these lights, under normal conditions, sufficiently illuminated the sidewalk in question. There is, however, no direct testimony in the record that the lights were actually burning at the time of the injury. The records of the lighting company showed that the electric current on that circuit had been turned on some time prior to the injury and remained on all night, and from this evidence the presumption might be indulged that the lights were burning at the time of the accident. The trial in the court below resulted in a verdict of one thousand — 710 — dollars in favor of appellee, and from this verdict and judgment appellant appeals, assigning amongst other errors complained of, the refusal to grant the. peremptory instruction requested by appellant: Appellee prosecutes a cross-appeal, assigning several errors in the introduction of testimony and the granting of certain instructions. Appellee in the course of her testimony says: “When I left the store, I was walking somewhat in a hurry, then; otherwise, I would have been on the guard. I had been to get some milk for the babies.” Other excerpts from her testimony are as follows: “I went to get condensed milk, and I was in rather a hurry, and fell into this place. It was deep like. It may have been that the bricks were all around there, but they were all out of place for a good-sized place. ’ ’ Pressed as to ,the depth of the alleged hole or depression, she says: “I suppose it was this deep anyway, like it had gone and washed out, or something. Why, I suppose it was a foot; it may have been more; it was just about that.” She furthermore states: “I was walking fast.” “I was in a hurry, too, to get home, and I never noticed.” And asked if she went back to examine the place of injury afterwards, she stated: “I went around from the store back that way, and the place was fixed.” The other testimony of appellee is to the effect that she put her foot in the depression, fell on the sidewalk, and sustained certain alleged injuries to her right ankle and limb. The plaintiff introduced two witnesses besides herself —Dr. Clark, whose testimony' is confined to the nature of the injuries, and Mr. Morehead, who says there was no hole at all in the sidewalk, but that the only defect in the sidewalk was some bricks that were loose and — 711 — some missing. All the testimony in the case shows that the depression was not over three inches, or, as some of the witnesses put it, the thickness of a brick laid flatwise. Some of the witnesses state that all-the bricks were there, bnt were loose; while others state that some of the bricks were loose and some missing. Plaintiff herself, however, states that her fall was occasioned by a step into a depression, and not. by reason of tripping on a loose brick. It is manifest from the testimony that plaintiff was walking very rapidly; that she was looking straight forward, and was not looking where she was placing her feet; that she recovered herself quickly from the fall and proceeded home in haste, without attempting to examine the alleged defect in the sidewalk; and if her statement to the effect that it was dark be accepted as true, then she was in no position to make a careful estimate of the depression or misplaced brick. Appellee was in company with no one, and the exact place in the sidewalk is only identified by her statement that it was across the street, or opposite, Aunt Fannie Durgen’s. The direct and positive evidence in the case shows that at this point the brick pavement was three feet in width, and that on the side adjoining the street the bricks had become ‘loose, and some of them, as far as the middle of the sidewalk or eighteen inches from the outside edge, were misplaced, leaving a depression the depth of the thickness of a brick. The question is presented, therefore, as to whether a depression in the sidewalk, caused by misplaced bricks and of the depth of three inches, is such a defect as renders the city liable at all. In the case of City of Vicksburg v. Hennessy, 54 Miss. 391, 28 Am. Rep. 354, our court announces the foundation principle running through all the cases of this character. Judge Chalmers, for the court, well says: “Municipal corporations are not liable for every accident that may happen in their streets. They are not712 insurers of the safety of those who use them. Their duty is discharged when they have made them reasonably safe for people of ordinary prudence.” The same principle is announced and recognized in the case of Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452, 30 Am. St. Rep. 521, in the statement of the court that: “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.” To the same effect is the statement on page 1006, 2 Dillon on Municipal Corporations, viz.: “The law does not require ' streets or sidewalks so constructed as to secure absolute immunity from danger in using them, nor is it bound to employ the utmost care and exertion to that end.” It is a principle universally recognized in all the adjudicated cases that municipalities are only required to exercise ordinary care to keep and maintain their streets and sidewalks in a reasonably safe condition for the use of persons exercising ordinary care and caution; or, in other words, sidewalks must.be reasonably safe. Now, the statement of appellee that she supposed the hole in the sidewalk must have been a foot deep must be accepted and treated as a mere supposition, based more upon the unfortunate results of her misstep while she was in the dark and impelled by the sense of excitement and haste. Such a conclusion of the witness does not by any means meet the burden of proof laid upon her. She must, by a preponderance of the evidence, show negligence on the part of the city authorities in the construction or maintenance of the sidewalk in question; and every witness in the case, outside of appellee as a witness in her own behalf, fixes the depth of the depression at not exceeding three inches. We are therefore forced to the conclusion that such a depression, — 713 — caused by a misplaced brick in a brick paved sidewalk in the residence portion of the city of Meridan, does not in itself show snch a defect as renders the city liable for the injury sued for. In the case of Waggener v. Town of Point Pleasant, 42 W. Va. 798, 26 S. E. 352, the plaintiff in his declaration alleged that the town— “wrongfully and injuriously allowed and permitted said sidewalk to become and remain in bad condition, order, and repair, within the corporate limits of said town, in this: That the said defendant permitted a great number of the bricks of which said sidewalk was built to be torn up and carried away, and that other of said bricks were in the ground, with their tops projecting upward above the surrounding surface, and there was also a number of loose bricks partially imbedded in the ground, all of which made a very rough, uneven, and dangerous surface on said sidewalk, and allowed said sidewalk to be and remain uneven, sideling, muddy, rocky, and slippery,” etc. The court sustained a demurrer to the declaration, and in the opinion of the appellate court is this language : “Such an accident might occur on almost any pavement in any municipality where bricks are used for paving purposes, for there is always more or less projection, owing to wear from travel, defects in the material, and the effects of time and the elements. And sometimes they are purposely laid unevenly, to keep the surface from being too slippery, dangerous, and impassable. Oftentimes the middle of a rough and rocky street furnishes a much safer place of locomotion than the smooth, even sidewalk adjacent thereto; and it is just as absurd to hold a town liable for every accident that occurs on a rough and uneven sidewalk as it would be to hold it liable for accidents on sidewalks that are too smooth and even . . . Snch accidents are liable to occur any place with old and feeble, careless and in — 714 — different persons, and are not such as a municipality may be held responsible for, even though the sidewalk be in an imperfect condition.” ' / In the case of Morris v. City of Philadelphia, 195 Pa. 372, 45 Atl. 1068, the plaintiff “trod upon a brick in a slight depression in the pavement, and it turned under the pressure of her foot sufficiently to cause her to fall,” and the sourt says: “To hold the city liable in damages for every trivial accident of this kind would be to adopt a measure of liability quite unheard of, and entirely too severe for the ordinary administration of municipal affairs. The possibility of occasional injury in such circumstances is one of the inconveniences ... in large and populous cities, to which the citizen must submit.” In the case of Hamilton v. City of Buffalo, 173 N. Y. 72, 65 N. E. 944, we excerpt from the opinion as follows : “The authorities of a city are not required to keep the streets in an absolutely perfect condition, for this would be practically impossible. All kinds of pavements that have heretofore been discovered and used are subject to wear and some displacements when used by heavily laden vehicles, and this cannot be prevented. It is the duty of the municipality to remedy defects, -within a reasonable time, which an ordinarily prudent man would regard as dangerous. The law imposes upon the municipality the duty of guarding against such dangers as can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care; but when an accident happens by reason of some slight defect from which danger was not reasonably to be anticipated as likely to happen, it is not chargeable with negligence. ’ ’ In the case of Butler v. Village of Oxford, 186 N. Y. 444, 79 N. E. 712, it was held that the municipality was not liable for injuries received by a pedestrian who — 715 — stumbled against the edge of a stone sidewalk which projected above an adjoining dirt sidewalk from two and one half inches in the center to about five inches at the edge of the walk, and the court says of the liability of the defendant: “It is not an insurer, and is not expected to maintain walks and streets in such an absolutely perfect condition as to render an accident impossible, but is expected to use reasonable care and prudence in detecting and remedying any defect which it might be fairly anticipated would be dangerous and liable to cause an accident. ’ ’ This case was cited by and approved in the similar case of Stratton v. City of New York, 190 N. Y. 294, 83 N. E. 40. In the case of City of Indianapolis v. Cook, 99 Ind. 10, the obstruction complained of in the sidewalk consisted of a water box, six by seven and one-half inches in size, and extending one and one-fourth inches above the level of the sidewalk. The plaintiff in that case stumbled and fell over said water box on a dark and rainy night, at a time when it was difficult to see the water box. The decision of the case turned upon the question of negligence on the part of the plaintiff, but as to the liability of the city in any event the opinion says: “A city is not an insurer against accidents upon its streets and sidewalks. It is simply required to keep its streets and sidewalks in a reasonably safe condition for persons traveling in the usual modes by day and night, and using ordinary care. A man may stumble and fall anywhere, in a house or in a street; but, because he happens to fall in the street, it follows by no means that the city is responsible for the injury he receives. There are slight inequalities in sidewalks, and other trifling defects and obstructions against which one may possibly strike his foot and fall; but if injury might be avoided by the use of such care and caution as every — 716 — reasonably prudent person ought to exercise for his own safety, the city would not be liable.” Counsel for appellee rely upon the cases of City of Natchez v. Lewis, 90 Miss. 310, 43 So. 471, and Birdsong v. Mendenhall, 97 Miss. 544, 52 So. 795. In the Lewis Case there was a hole in the sidewalk, twelve inches or more in length, at least eight inches in depth, and slanting downward and upward towards the street, and it was shown, that this hole had remained there so long that the city had due notice thereof. In the Birdsong Case plaintiff’s foot was caught in a hole, and he was tripped, and fell and sustained injuries. The exact character of the defect complained of is not disclosed by the reported case. The principal. defense was to the effect that plaintiff had knowledge of the condition, and was thereby debarred from any recovery, and- the opinion of the court deals primarily with this point. The point was not raised in that case that the defect complained of was not an unreasonable situation, and we gather from the briefs of counsel that the defect was indeed dangerous. To sustain the judgment recovered by appellee in this case would be to announce a new measure of liability on the'part of municipalities in the construction and maintenance of sidewalks. It would be equivalent to holding that sidewalks in the residence portion of our cities must not deviate three inches from a perfectly smooth surface, and force the maintenance of sidewalks of cement or some similar construction. The practical result would be to render municipalities insurers of the safety of pedestrians. A municipality is nothing more than a majority of its citizens, and in the administration of its corporate affairs courts must continue to apply the rule of reason. The defect in the' sidewalk here complained of is just such a defect as perhaps exists in every municipality in the state, and the fall is one that might by accident be experienced.by any one in the home or on the streets. — 717 — There is no merit in any of the assignments of error on cross-appeal. The chief complaint is about the amount of the verdict. The instructions granted appellee were most liberal. If there is any error in the admission of testimony, or in the granting of instructions, it was in appellee’s favor. The fall and resulting injury by appellee in this case are most unfortunate, and the sympathy of any court would naturally be aroused in her favor. Let the judgment of the lower court be set aside, and judgment entered here for appellant. Reversed and judgment here for appellant. Reversed. Cook, J., dissents.