Summary
In Ming v. City of Jackson, 202 Miss. 260, 31 So.2d 900, a sidewalk depression 1 to 2 inches deep did not establish negligence of the municipality in the maintenance of its sidewalk.
Summary of this case from Pearson v. Boise CityOpinion
No. 36432.
September 22, 1947.
1. MUNICIPAL CORPORATIONS.
Existence of a hole in sidewalk approximately 8 inches in diameter and 4 1/2 inches deep, through the center of which an iron pipe 3 1/2 inches in diameter protruded, would warrant a finding of negligence of municipality in maintenance of sidewalk.
2. MUNICIPAL CORPORATIONS.
Existence of a saucer-like depression in sidewalk approximately 7 1/2 inches in diameter and from 1 to 2 inches deep at the center would not establish negligence of municipality in maintenance of sidewalk.
3. NEGLIGENCE.
Exposure of the public to danger is not negligence if there is no unreasonable risk imposed by the actor.
4. MUNICIPAL CORPORATIONS.
Municipality is not guilty of actionable negligence if it uses reasonable care to maintain its sidewalks reasonably safe for use by reasonably careful persons.
5. APPEAL AND ERROR.
Striking second count of declaration predicating liability of municipality for injuries suffered by pedestrians in fall on allegedly defective sidewalk on failure to erect and maintain street lights near place of injury was not reversible error, where evidence warranted finding that city was not negligent in causing or suffering alleged defect to remain in sidewalk.
6. APPEAL AND ERROR.
Where instructions correctly stated applicable legal principles, prejudice could not be inferred from fact that one instruction, by quoting from discussive portions of former opinions of Supreme Court, assumed an undesirable editorial aspect.
7. EVIDENCE.
In suit against city for injuries suffered by pedestrian in fall on allegedly defective sidewalk, testimony of lay witnesses that alleged defect was dangerous was properly excluded.
8. EVIDENCE.
Lay opinion is ordinarily excluded as to such qualities of human behavior as care, safety, propriety, reasonableness, or their opposites, as distinguished from matters of distance, time, speed, weight, and the like.
APPEAL from the circuit court of Hinds county. HON. HUGH B. GILLESPIE, J.
J. Ed. Franklin, of Jackson, for appellant.
Reasonable care must be exercised by a city to keep streets in a reasonable safe condition for their accustomed use, in the accustomed manner of that use; and in order that this duty shall be performed, the city must use reasonable care to see that the street is kept reasonably free of such real dangers as will imperil the traveler when he making the customary use, in the customary manner, and in the use exercises such caution as under all the circumstances of the case should reasonably have been expected of him.
McComb City v. Hayman, 124 Miss. 525, 87 So. 11; Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; Gould v. Town of Newton, 157 Miss. 111, 126 So. 826; City of Jackson v. Clark, 152 Miss. 731, 118 So. 350; Crawford v. City of Meridian (Miss.), 154 So. 888; City of Meridian v. Akin, 193 Miss. 505, 10 So.2d 194; City of Meidian v. King, 194 Miss. 162, 11 So.2d 205; Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 199 So. 294, 1 So.2d 242; 25 Am. Jur. 641, Sec. 348; 43 C.J. 1170 et seq.
The court erred in charging the jury to find a verdict for the city on the second court of the declaration.
City of Natchez v. Lewis, 90 Miss. 310, 43 So. 471; City of Vicksburg v. Hennessy, 54 Miss. 391; City of Meridian v. Crook, 109 Miss. 700, 69 So. 182; City of Vicksburg v. Scott, 168 Miss. 572, 151 So. 914; Birdsong v. City of Clarksdale, supra; White v. City of New Bern, 146 N.C. 447, 59 S.E. 992, 125 Am. St. Rep. 479; Williams v. Mayor and Counsel of Washington (Ga.), Ann. Cas. 1916B, 198; 25 Am. Jur. 710, Sec. 415.
The court erred in excluding the testimony of the witnesses to the effect that the hole in the sidewalk in question created a dangerous condition in the sidewalk.
Gould v. Town of Newton, supra; Baltimore Liberty Turnpike Co. v. Cassell, 66 Md. 419, 59 Am. Rep. 176; 32 C.J.S. 144-145, Secs. 485, 486; 11 R.C.L. 634, Sec. 52; Wigmore's Code of Evidence, p. 163, Rule 100A; 7 Wigmore 5, Sec. 197.
The verdict was against the overwhelming weight of the credible evidence.
Mobile, J. K.C.R. Co. v. Jackson, 92 Miss. 517, 46 So. 142; Wilson v. Blanton, 130 Miss. 390, 94 So. 214; Yazoo M.V.R. Co. v. Lamensdorf et al., 180 Miss. 426, 177 So. 50, 178 So. 80; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800; Socola v. Chess Carley Co., 39 La. Ann. 334, 1 So. 824; Bourque v. New Orleans City Lake R. Co., 24 So. 622; Giarruso v. New Orleans Ry. Light Co., 131 La. 559, 59 So. 979.
The city, having created this hole in the sidewalk, is charged with notice of its existence and condition.
Birdsong v. City of Clarksdale, supra; City of Jackson v. Lewis, 142 Miss. 806, 108 So. 156.
If the city was not charged with actual knowledge because of the creation of this hole, it was certainly charged with constructive knowledge because of its long continued existence, as shown by the overwhelming evidence.
City of Natchez v. Lewis, supra; Whitfield v. City of Meridian, 66 Miss. 570, 6 So. 244; City of Greenville v. Middleton, 124 Miss. 310, 86 So. 804; Warren v. City of Tupelo, 187 Miss. 816, 194 So. 293; City of Lumberton v. Schrader, 176 Miss. 272, 168 So. 77.
The instructions granted to the defendant are erroneous and of themselves constitute reversible error.
City of Vicksburg v. Hennessy, supra; Crawford v. City of Meridian, 174 Miss. 875, 165 So. 612; Gulf, M. N.R. Co. v. Weldy, 193 Miss. 59, 8 So.2d 249; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; Code of 1942, Secs. 1454, 1455.
E.W. Stennett and Butler Snow, all of Jackson, for appellee.
A municipality is not the insurer of the safety of pedestrians using the sidewalk therein. It is not liable for an injury occasioned by one of the usual and ordinary defects in its sidewalk which may reasonably be expected to be found therein. The liability of a municipality and the duty of a municipality with reference to its sidewalks is not identical with the duty which is imposed upon the owner of a building with reference to his premises or the owner of a store or some thing of the kind. But a municipality in maintaining its sidewalks is only required to exercise reasonable care to keep the same in reasonably safe condition for persons using the same for the purpose for which intended and while exercising ordinary care and prudence for their own safety. Also, where a defect exists for which a municipality would have otherwise been liable for an injury sustained as a result thereof, it must be shown that the municipality had notice of the existence of such defect, either actual notice or constructive notice; that is, that such defect had existed for sufficient time that the municipality in the exercise of reasonable care should have had notice thereof.
Thomas v. City of Lexington, 168 Miss. 107, 150 So. 816; City of Vicksburg v. Scott, 168 Miss. 572, 151 So. 914; City of Meridian v. Crook, 109 Miss. 700, 69 So. 182; Higginbottom v. Village of Burnsville, 113 Miss. 219, 74 So. 133; McComb City v. Hayman, 124 Miss. 525, 87 So. 11; Dow v. Town of D'Lo, 169 Miss. 240, 152 So. 474; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; Warren v. City of Tupelo, 187 Miss. 816, 194 So. 293; Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827; City of Meridian v. Akin, 193 Miss. 505, 10 So.2d 194; City of Meridian v. King, 194 Miss. 162, 11 So.2d 205, 11 So.2d 830; City of Hazlehurst v. Matthews, 180 Miss. 42, 176 So. 384; Pomes v. McComb City, 121 Miss. 425, 83 So. 636; City of Vicksburg v. Hennessy, 54 Miss. 391; Mississippi Law Journal, Vol. X, p. 175.
Peremptory instruction for defendant on second count of the declaration was proper. In the absence of a statutory or charter provision to the contrary, it is generally held that a municipality is under no duty to light its streets, even though it is given the power to do so, and, hence, that its failure to light them is not actionable negligence and will not render it liable in damages to a traveler who is injured solely by reason thereof.
Blain v. Montezuma (Iowa), 129 N.W. 808; Gee v. Hopkinville (Ky.), 157 S.W. 30; 25 Am. Jur. 710, 711; 43 C.J. 1059.
The opinion or conclusion of a lay witness upon a fact or facts in issue is incompetent and inadmissible, although there are exceptions to this rule as well settled as is the rule itself, where the issues involve facts and matters calling for special skill and study or where the facts in controversy are incapable of being detailed and described so as to give the jury an intelligible understanding concerning them.
20 Am. Jur. 634, Sec. 765, p. 689, Sec. 819.
The normal function of a witness is to state facts; the province to arrive at opinions from the facts belongs to the jury.
Columbus Greenville R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.
The city was not charged with notice that there was an open hole in the sidewalk; that is, if the testimony of the defendant's witnesses may be believed.
The verdict is not contrary to the overwhelming weight of the evidence. The jury has decided the issues of fact with ample evidence to support their verdict, and this case should be affirmed.
Argued orally by J. Ed Franklin, for appellant, and by Chas. B. Snow, for appellee.
Appellant brought suit to recover damages suffered from a fall allegedly caused by the negligence of appellee in allowing a hole to remain in one of its sidewalks. From a verdict and judgment for the defendant, plaintiff appeals.
The declaration was in two counts, the first predicated upon negligence in causing the defect or suffering it to remain; the second upon a failure to erect and maintain street lights near the place of injury. The second count also carried forward the allegations of the first count. The injury occurred about 10:30 p.m. while plaintiff was returning to her home from a neighbor's house.
The assignment of errors includes the action of the trial court in striking the second count; in giving certain instructions for the defendant; and in the exclusion of certain testimony.
The declaration described the defect in the sidewalk as a hole about eight inches in diameter, about four and a half inches in depth, through the center of which an iron pipe, of a diameter of three and a half inches, protruded. Testimony for the plaintiff substantially supported these allegations, and supported the contention that the defect had existed for a period variously asserted to be from five months to three years.
The defense set up was that there was no such hole and that plaintiff was not injured as a result of stepping therein. We need not detail the testimony on this issue. It is sufficient that there was a sharp conflict in the testimony on this point. A defect of the nature alleged in the declaration and as testified to by plaintiff's witnesses and as shown in photographs exhibited may well be considered dangerous. On the other hand, the witnesses for the defendant who had observed the sidewalk for periods running from two to seventeen years, testified that the photographs exhibited did not reflect its condition. Some of the younger witnesses testified that they had often skated upon the sidewalk at that point, others that they had regularly swept the sidewalk. All testified that the spot picture there had been at most only a slight depression described as "saucer-like," about seven and half inches in diameter and from one to two inches at its center. There was testimony that there had been some cleaning out of the area after the accident and before photographs were made.
It is seen, therefore, that if the jury accepted the testimony of plaintiff's witnesses it may have been warranted in finding negligence. Had they accepted defendant's testimony no negligence could be found. City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L.R.A. 1916A, 482; Pomes v. McComb City, 121 Miss. 425, 83 So. 836; City of Hazlehurst v. Mathews, 180 Miss. 42, 176 So. 384; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121.
The foregoing cases do not attempt to set up a standard of reasonable care measurable by a yard stick. They are consistent in holding that in each case the deviation in elevation remained within the bounds of reasonableness. Nor do they exclude the possibility that there may remain residual danger. Exposure of the public to danger is not negligence if there is no unreasonable risk imposed by the actor, and even so, there is no actionable negligence if the actor has used reasonable care to maintain its sidewalks reasonably safe for use by reasonably careful persons. Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 625, 199 So. 294, 1 So.2d 242; City of Greenville v. Laury, supra; City of Meridian v. King, 194 Miss. 162, 11 So.2d 205, 830.
We have frequently emphasized the fact that danger and negligence are not synonymous, nor is the existence of a defect, of necessity, either danger or negligence. It results, therefore, that if the jury should accept the appellee's testimony as correct there would have been no negligence shown. The jury's verdict for the defendant carries the inescapable implication that a hole did not exist. Under the circumstances there could be no reversible error, if error at all — which we need not decide — in striking the second count. There could be no duty to use means to protect or guard against that which it is not negligence to maintain.
The instructions complained of embodied and relied upon the principles set forth in the cases above cited and are not objectionable. The fourth instruction by quoting from the discussive portions of former opinions, assumed an editorial aspect which we have often discouraged. The legal principles, however, were correctly stated and no prejudice may be inferred therefrom.
Appellant's objection to the exclusion of certain proffered testimony concerns attempts to show by opinions of certain witnesses that the alleged hole was "dangerous." It is seen at once that the inquires sought to elicit the opinion of lay witnesses in a matter to which general knowledge may supply an answer. Unless the circumstances are unusual or the situation complicated by factors not susceptible of depiction by description or photograph, the ordinary witness can add no special knowledge to that possessed by the jury.
Lay opinion is ordinarily excluded as to such qualities of human behavior as care, safety, propriety, reasonableness or their opposites. This is a field distinct from matters of distance, time, speed, weight and the like. See Rule 401, Comment (a), A.L.I. Model Code of Evidence; 32 C.J.S., Evidence, Secs. 485, 486; 20 Am. Jur., Evidence, Secs. 765, 819; McKelvey on Evidence, 5th Ed., Sec. 180, p. 335; Wigmore on Evidence, 3rd Ed., Sec. 1924.
Appellant cites Gould v. Town of Newton, 157 Miss. 111, 126 So. 826, to support his contention upon this point, quoting the following language from the opinion, "Appellant introduced witnesses who testified that it was a dangerous obstruction of the sidewalk." There is misunderstanding here. This Court was not quoting but summarizing the testimony. The only offer to elicit an opinion that the sidewalk was `dangerous' was rejected by the trial court upon objection. For us to state that plaintiff's testimony here revealed danger would be a far cry from allowing a witness to so characterize it.
We find no ground for overturning the verdict and judgment.
Affirmed.