City of Greenville v. Middleton

W. II. Cook, delivered the opinion of the court. The plaintiff, appellee here, sued the city of Greenville for damages for personal injuries alleged to have been sustained by reason of a defective bridge across one of the streets of the city, and from a judgment in favor of appellee for five thousand dollars the city prosecutes this appeal. In August, 1917, plaintiff, a. lifelong cripple, Avas the agent in the city of Greenville for one of the Memphis newspapers. These papers reached Greenville shortly before ten o’clock p. m., and' plaintiff delivered them to the various subscribers at night. For this purpose he rode in a small two-wheeled cart clraAvn by a pony, and, while driving along Gloster street within the corporation limits of the city, he attempted to cross a bridge which Avas at the intersection of Gloster and Theobold streets. There Avas a hole in this bridge caused by a broken plank, and plaintiff’s horse stepped into this hole and fell, and plaintiff Avas throAvn from the cart onto the ground and injured. This accident occurred on Monday night, and the bridge had been broken on the preceding Thursday afternoon. On Sunday afternoon a horse driven by W. W. Lindsey, a witness for plaintiff, also fell into this same hole. Gloster street runs into Theobold street at right angles., and the broken bridge was across Gloster street at the [317] point where Theobold and Gloster streets intersect and on the east margin of Theobold street. Theobold street is one of the'main thoroughfares of the city and is very much traveled. Gloster street is not a main thoroughfare, and there is not so much travel thereon, but it is in a thickly populated negro settlement. This appeal presents for determination two questions: First, whether a peremptory instruction for defendant should have been granted; and, second, whether the verdict is excessive. There is no contention in this case that the city authorities had actual notice of the defective condition of the bridge, but the case ivas submitted to' the jury upon the question of whether the facts and circumstances in evidence Avere sufficient to attribute to the municipality constructive notice of the defect. It is undoubtedly true that, if the evidence in any case is insufficient to support a finding that the municipality/' is charged with constructive notice of a defect in the streets, a peremptory instruction for the municipality upon the question of liability is proper. But the general rule is well established that the facts and circumstances of each case must determine whether constructive notice of the defect is to be attributed to the municipal authorities, and ordinarily this is a question for the jury. There are many elements Avhich may properly be considered by the jury in passing upon this question. No definite rule as to the length of time a defect must have existed to furnish notice to the municipal authorities can be fixed by the court, and whether notice shall be imputed to the city authorities is ordinarily a question for the jury to determine from the length of time tlie defect has existed, the nature or character thereof, the publicity of the place where it exists, the amount of travel over the street, and any other facts or circumstances in evid¿r°e which tend to show notoriety, and from which they may conclude that by the exercise of ordinary and reasonable care and diligence the defect should have been discovered by the corporate authorities. Whitfield v. City of Meridian, 66 Miss. 570, 6 So. 244, 4 L. R. A., 884, 14 [318] Am. St. Rep. 596; 28 Cyc. 1388, 1507; McQuillan on Municipal Corporations, vol. 6, sections 2813 and 2814; Bailey v. Winston, 157 N. C. 252, 72 S. E. 916; Harriman v. City of Boston, 114 Mass, 241, 48 N. E. 186; Naylor v. Salt Lake City, 9 Utah, 491, 35 Pac. 509; note 20 L. R. A. (N. S.) 513. This case Avas submitted to the jury under instructions which correctly announced the laAY upon the question of constructive notice and liability, and Ave cannot say that the testimony Avas insufficient to warrant the finding of the jury. Finally, it is insisted that the verdict is excessive. It is peculiarly the provinfce of the jury to measure the compensation due for the pain and suffering endured by plaintiff, and this question Avas submitted to the jury under proper instructions. The record does not disclose anything which would indicate that the jury Avas influenced by passion, prejudice, or corruption, and after a careful ex-animation of the testimony Ave are uiiAvilling to say that the verdict of the jury is excessive. We find no error in the instructions granted the plaintiff, and the principles announced in the instructions refused defendant Avere fully covered by those which Avere granted, and therefore this cause is affirmed. Affirmed.