Higginbottom v. Village of Burnsville , 113 Miss. 219 ( 1916 )

SteveNS, J.,

delivered the opinion of the court.

Burnsville, in Tishomingo county, is a village duly incorporated. Fulton or Jefferson street leads from the center of the town in a northerly direction. Across this street near the corporate line was a bride or culvert, duly placed by the municipal authorities. At one end and on the south side thereof was a large hole, or depression, that had been washed out and of considerable size. It is difficult to gather from the evidence the exact measurements of this gully. It appears, however, that the “straight down part” was eleven and one-half inches deep, and that from the top of this perpendicular portion the depression gradually sloped several inches upward to the main level of the street. This gully was about two feet wide and extended across about one-third of the twenty-foot street. It appears, fur-that the little bridge or culvert had become very much dilapidated, broken, and worn, and at the south side some of the planks were broken off. It seems that the passageway for the water had become filled with dirt and other obstructions, and the water had been forced to break over on the side of the culvert, and thereby to wash out the gully referred to. In November, 1914, about six thirty or seven o ’clock in the evening, and just after it became dark, appellant, in company with two friends, was riding south on this street coming into1 the village. Appellant testifies that he was perfectly familiar witli the defect in the street, but on the night of the injury complained of thought he had passed the danger point. The horse upon which he was riding stepped into the hole or onto the broken place on the bridge and fell, throwing appellant some eight or ten feet and breaking his arm, and otherwise severely injuring him. As a result of this injury appellant was unconscious for a day or so, was confined to his bed for a week, and for a long time unable to do any kind of labor. The defective bridge had been in this condition for several months before the injury, and the existence of this broken culvert and hole in the street was well known to the municipal authorities, so much so that one party had requested and insisted upon the authorities repairing the defect. At the conclusion of plaintiff’s testimony, appellee moved to exclude the'plaintiff’s evidence and to grant it a peremptory instruction. This motion was by the court sustained, and from the judgment entered in pursuance of this instruction appellant prosecutes this appeal.

' Counsel for appellee frankly concede that the defect in the street which caused the injury complained of had existed for several months, and that the municipal authorities were charged with notice thereof. The only way in which appellee justifies the propriety of the peremptory instruction granted by the trial court is the contention that the plaintiff was not in the exercise of due care and caution for his own safety. It is contended by appellee that before plaintiff can recover he must show that at the time of his injury he was exercising due care, especially when he knew of the admitted defect over which he was to travel. In view of this argument we have carefully examined the testimony of plaintiff and his witnesses, and find the positive testimony of plaintiff himself that his horse was ina“ slow trot,’ ’ and that plaintiff thought he had passed the dangerous place. Plaintiff and his two companions were each riding horseback, and at the time of the injury almost abreast. Plaintiff says:

“I thought we had passed it; but it was a little dark and I turned out to the right of this young man, and it was between me and the other one a little bit,” and ‘fit was tolerable dark. ”

The testimony further shows that wagons and other vehicles could not cross this ditch or gully into which plaintiff’s horse stepped, but were compelled to go around to one side and somewhat out of the beaten way. The proof is abundant to show that plaintiff’s horse did step into the hole and fell. The fact that a good saddle horse did in fact stumble or fall by reason of the defect is a strong circumstance that the street was in bad condition. The proof is also abundant to show that plaintiff was seriously and permanently injured.

-While the sole point stressed by counsel for appellee in his brief is the alleged want of due care on the part of plaintiff, in the oral argument counsel relied on City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L. R. A. 1016A, 482. The facts make the particular case; and the facts of the instant case are altogether different from the facts that controlled the Crook Case.

While municipalities are not insurers of the safety of their streets, there can he no question about their duty to keep streets in reasonably safe condition for persons traveling in the usual way and exercising due care for their safety. In meeting this obligation the municipality should not neglect any portion of the street, but should see that the street from side to side is reasonably safe.

It is true that the village of Burnsville is a small place. Counsel assert that it has only three hundred and fifty or four hundred inhabitants. While the size of the munioi-pafity and the amount of travel and traffic over the streets are circumstances which the jury may well consider in determining the negligence of the corporation, these circumstances would not relieve the village of liability under the case made by this record.

Generally the question of whether the street in the suburbs of a village like this is or is not defective must be regarded as a question of fact for the jury, deliberating under proper instructions from the court. It was accordingly error on the part of the learned circuit judge in excluding the plaintiff’s evidence and granting the peremptory charge.

Reversed and remanded.