City of Jackson v. Clark , 152 Miss. 731 ( 1928 )

^* Corpus Juris-Cyc References: Juries, 35CJ, section 12, p. 147, n. 94; section 128, p. 213, n. 39; p. 214, n. 53, 56; section 145, p. 224, n. 20; p. 225, n. 26; Municipal Corporations, 44CJ, section 3703, p. 939, n. 76; On constitutional provision that right to jury trial shall remain inviolate, see 16 R.C.L. 196; 4 R.C.L. Supp. 1046. This is a suit for personal injury. Appellee recovered judgment against the city of Jackson in the county court for two hundred fifty dollars. On appeal to the circuit court this judgment was affirmed, and comes here from that court. The evidence was in conflict, but there were sufficient facts to support the judgment. The serious point, however, arises over whether there was error in denying appellant a jury trial in the county court. The pertinent portion of the declaration, as amended, reads as follows:

"Hoskin street is one of the thoroughfares of the said city, or is kept up or maintained by said city, and held out to the public as one of its streets, over which vehicles and pedestrians travel from day to day; that said Hoskin street runs east and west in said city and prior to January 1, 1927, the said city opened up a drainage ditch; said drainage ditch traversed Hoskin street in a northerly and southerly direction; that a plank about twelve or eighteen inches in width, six or eight feet in length, and about one or two inches in thickness, was placed directly across said ditch for the purpose of pedestrians crossing said drainage ditch.

"That due to the fact that said drainage ditch was some eight or ten feet deep the city of Jackson was grossly negligent in placing or in permitting said plank or planks to be placed [italics ours] across the drainage ditch for the purpose of pedestrians passing over said ditch, and especially inpermitting said planks to remain across said ditch [italics ours]; that the city of Jackson knew or should have known by the exercise of reasonable care and skill, that said plank was not securely fastened at the ends nor at the sides, which made it very unsafe as a walkway for pedestrians to cross, or attempt to cross, said ditch; that the city of Jackson should have known that said plank was likely to turn at any time and precipitate any pedestrian who might attempt to cross said ditch; that on account of the narrowness of said plank the said city of Jackson knew, or should have known by the exercise of reasonable care and diligence, that when said plank became moistened any pedestrian was likely to slip and fall from said plank; that the plaintiff herein when attempting to cross said ditch on or about the 15th day of February, 1927, that she slipped when said plank was not securely fastened, as above set out, thereby causing her to fall six or eight feet, falling on her head, thereby seriously injuring her head, neck, back, and body; that the said plaintiff herein would show unto the court that she, at the time of said accident, was exercising a high degree of care; that the city of Jackson was grossly negligent in failing, neglecting, and refusing to furnish this plaintiff a safe walkway on its public street," etc.

The italicized parts of the declaration were amendments inserted under circumstances that will be referred to herein. Appellee filed the plea of general issue to the original declaration before amendment thereto were made. Neither party requested a jury trial upon filing the declaration and general issue plea.

Upon the issues thus joined appellee, hereinafter referred to as plaintiff, introduced her proof and rested. The appellant, herein referred to as defendant, moved for final judgment, alleging a variance between the declaration and the proof. The county judge overruled this motion. The plaintiff then asked for, and was granted, leave to amend her declaration. The amendment consisted only in the insertion of the italicized parts of the declaration set out as aforesaid. Defendant claimed a material amendment had been made in the declaration, pleaded surprise, and moved for continuance of the case for the term. Motion to continue was overruled, and the case set for trial on the 4th day thereafter during the same term of the county court. Defendant filed three special pleas to the declaration as amended, and in each asked for a jury. The request for jury trial was refused by the court. Special plea No. 1 averred that the planks were placed across the ditch by one King Tillman, for his own convenience; No. 2, that the walkway was reasonably safe, and plaintiff fell because of her own carelessness; No. 3 was substantially the same as the second, except it states that the plaintiff was entirely familiar with the walkway, and that it was equipped with a wire cable handhold or guard. Replications were duly filed to all these special pleas. The cause then proceeded to trial, resulting, as stated, in a judgment for the plaintiff.

Under this situation, was defendant entitled to the jury? To state it another way, had defendant waived its right to a jury? The pertinent portion of the County Court Act (section 8, chapter 131, Laws 1926; section 735, Hemingway's 1927 Code) provides:

"Either party to a suit in the county court may demand a jury but the demand shall be made by the plaintiff if made by him, with the filing of the declaration, and if made by the defendant,on the filing of his plea, or answer. But the court may in its discretion allow a jury trial for any cause arising after such event."

The right of trial by jury is a cherished one, and the policy of the courts everywhere seems to be liberal in safeguarding this right against infringement. It was incorporated into our own Constitution of 1890, section 31 thereof providing: "The right of trial by jury shall remain inviolate." See, also, 35 C.J. 147; 16 R.C.L. 198; Isom v. R.R. Co., 36 Miss. 300.

This constitutional provision must be interpreted to mean that it shall never be destroyed, annulled, nor so hampered or restricted by legislation as to make the provision a nullity. It does not mean that it shall be totally immune from all reasonable regulations. Any reasonable regulation, free from arbitrary and unreasonable provisions regarding the enjoyment of the right, will not be a denial or impairment thereof. 16 R.C.L. 196, and authorities cited.

It was evidently the latter principle of law upon which the legislature sought to regulate and prescribe conditions under which a jury will be granted in the county court. Defendant did not challenge the statute as being unconstitutional or unreasonable, but earnestly insists that it was denied a right vouchsafed by the statute.

It is argued that plaintiff went into court charging an act of affirmative, positive negligence on the part of the city in actually placing the defective footway across the ditch, and shifted, by her amendments, to a charge of negligence in failing to maintain a reasonably safe foot way; that the defendant was prepared to defend the first without a jury, but, changing the character of the suit, a different defense was required, entitling it to a jury.

We do not think the slight amendments to the declaration rendered it necessary to file additional pleas. The three special pleas would have been entirely proper to the declaration in its original form. Without the amendments the declaration alleges that "Hoskin street is one of the thoroughfares of the said city, or is kept up or maintained by said city, and held out to the public as one of its streets." Knowledge, active or constructive, to the city of the defective sidewalk is alleged, and it further alleges that "the city of Jackson was grossly negligent in failing, neglecting, and refusing to furnish this plaintiff a safe walkway," etc.

It was the duty of the defendant city to keep its streets and public walkways in a reasonably safe condition for persons traveling in the usual way, and exercising due care for their safety. Higginbottom v. Village of Burnsville, 113 Miss. 219, 74 So. 133.

The original declaration sufficiently charged a breach of this duty. Defendant's failure to request a jury upon filing its original plea constitutes, in our judgment, a waiver of its right to jury trial. We do not mean to hold that there might not be amendments in pleadings so changing the character of suits or defenses as to entitle the opposite party to demand a jury, although none was demanded with the first declaration or plea filed. Such a contingency is amply provided for in the statute quoted, wherein it is said: "But the court may, in its discretion, allow a jury trial for any cause arising after such event." Request for a jury under such a situation would address itself to the discretion of the trial court. There was no abuse of the trial court's discretion in the instant case.

The judgment of the court below will be affirmed.

Affirmed.