Dent v. Town of Mendenhall

^* Headnotes 1. Negligence, 29 Cyc., p. 561; 2. Trial, 38 Cyc., p. 1632; 3. Negligence, 29 Cyc., p. 561; 4. Bankruptcy, 7 C.J., Section 220; As to whether right of action for personal injuries passes to trustee in bankruptcy or assignee in insolvency, see notes in 44 L.R.A. 180, 12 L.R.A. (N.S.) 1273, 3 R.C.L., p. 218. This is a suit by the appellant, Joe Dent, against the town of Mendenhall to recover damages for the death of his wife, who was killed through appellee's alleged negligence in maintaining an unsafe street and bridge in the municipality over which Mrs. Dent was driving in an automobile when the car was precipitated into the ditch or creek, causing her death. The question of negligencevel non of the municipality was submitted to the jury, which rendered a verdict in favor of the defendant. Hence this appeal.

The case of the appellant, as shown by the evidence in the record, is substantially as follows: The town of Mendenhall constructed and maintained a street running east and west, and maintained a bridge thereon over a small stream. The street was about twenty feet wide and on an embankment about six feet high, where the bridge was located. The bridge across the creek was twelve feet wide and about twenty feet long, and was constructed in the middle of the street connecting the two embankments on either side of the creek. The embankment thus extended out four feet north and south at the east end of the bridge. These earth abutments extending four feet from the bridge were grown up in grass and weeds, making the width of the bridge difficult to distinguish by a person approaching in a vehicle.

Mrs. Dent was traveling from east to west on the right-hand, or north, side of the road. The banister railing on the north side of the bridge was gone and the banister rail on the south side was defective and leaned over at the top for about a foot toward the north. With the grass and weeds growing on the four-foot extension on either side of the embankment, which was the abutment to the bridge, and there being no railing on the north side of the bridge to warn the traveler as to the width of the bridge or the abrupt four-foot jump off of the embankment into the creek, Mrs. Dent attempted to drive upon the bridge, and when the left wheels of her car struck the floor of the bridge the right wheels went off of the embankment, the four-foot extended abutment, the car was precipitated into the creek, and she was killed.

According to the testimony introduced by the appellant, the grass and weeds had grown on and around the side of the embankment up to the floor of the bridge, and the four-foot extension of the road being unguarded, the railing gone, the dangerous situation could not be observed by a person approaching the bridge until so near that it would be impossible to stop the car in time to prevent going over the north side or edge of the bridge or the extended obscured embankment.

A witness by the name of Mrs. Fred Crain, who was in the car with Mrs. Dent when it fell into the creek, testified in part as to the cause of Mrs. Dent's death. She said:

"We started from the courthouse . . . and had gone from the bank to the bridge in Mendenhall where Belle (Mrs. Dent) was killed. She was driving the car slowly along, having perfect control of the car, and we had gotten on the bridge, which seemed to me like a death-trap, about twelve feet wide, without banisters on one side, and the weeds had grown up on the side of the bridge on which the car turned over and on which there was no banister. We could not tell where the end of the bridge was because it was covered with weeds. We were on the edge of the bridge, or approaching the bridge, when she said, "This is a dangerous place,' and I never spoke a word, and she had not more than gotten that out of her mouth before the car slipped off of the bridge and turned over. The right front wheel slipped off of the north side of the bridge. Belle fell out of the car when the car went over, and, of course, the car fell on her and crushed the life out of her."

This witness further testified that Mrs. Dent was driving on the right side of the road, and was a careful driver, and that, on account of the weeds and the condition of the bridge, it was impossible to see the dangerous situation surrounding the approach to and the bridge on its northeast side; that you could not tell where the north edge of the bridge connected with the embankment of the road until you were so close that the car could not be stopped. She said the steering wheel of the car was in good condition and that Mrs. Dent was driving it in a careful and proper manner and had it under control at the time she approached the bridge.

There was a sharp conflict in the testimony given for the plaintiff and for the defendant at the trial. The evidence offered by the defendant went to show that the death of Mrs. Dent was due solely to her own negligence in approaching the bridge with the car not under control and with a defective steering wheel; also that she was operating the car at a high rate of speed and that she could have crossed the bridge in safety if she had been using due care in operating the automobile.

The main ground urged by the appellant for reversal is that the lower court erred in granting certain instructions to the defendant, particularly instruction No. 2, which we shall here set out and discuss. This instruction is as follows:

"The court charges the jury for the defendant that, though you may believe by a preponderance of the evidence in this case that the said bridge was only twelve feet wide, and that the road approaching it was several feet wider, and that there was no banister on the north side of said bridge, and you may further believe from the evidence that the post on the south side of the bridge was leaning toward the center of the bridge, and there was grass growing on the north side abutting the bridge, still you cannot find for the plaintiff, if you further believe from the evidence that there was sufficient room on the bridge for a reasonable prudent person driving a car not exceeding ten miles an hour with the car in good condition and under control to have crossed the bridge safely."

We think it was error for the court to give the above instruction, for two reasons. First, it was error to tell the jury, in effect, that there could be no recovery if the deceased approached the bridge at rate of speed "exceeding ten miles an hour," because this record does not show there was any ordinance of the municipality providing the speed limit in approaching bridges should be ten miles per hour. But, if it be conceded there was such an ordinance, or that the state law as to speed limit in approaching bridges is applicable here, still it only amounted to contributory negligence, and would not of itself bar recovery, unless the unlawful speed was the sole proximate cause of the injury. And second, the instruction is wrong and harmful in this, that it tells the jury that, even though they may believe that the road was twenty feet wide and the bridge only twelve feet wide, and there was no banister on the north side, and that the post on the south side was leaning toward the center of the bridge, and that there was grass growing on the north side abutting the bridge, still they could not find for the plaintiff, if they further believed that there was sufficient room on the bridge for a reasonably prudent person driving at ten miles an hour with a car in good condition and under control "to have crossed the bridge safely."

The instruction ignores the dangerous condition due to the weeds growing on the embankment hiding the four-foot extension of the road where it abuts the bridge, which had no rail on it, an unsafe condition likely to deceive the traveler who might not, with reasonable care, be able to ascertain the outer or north edge of the bridge before he had approached too far to stop his car.

To put it in another way, the instruction is erroneous in that it denies to the plaintiff the right to assume that the bridge and the approach thereto were in a reasonably safe condition for the public travel. Of course, the bridge was wide enough for the deceased to have crossed it safely if she had gone over the south or middle part of it, but the test is whether or not the roadway, including the bridge and the approach to it, was reasonably safe for a person using ordinary care in going over it. Extraordinary care is not required. McWhorter v. Draughn (Miss.), 102 So. 567; Higginbottom v. Burnsville, 113 Miss. 219, 74 So. 133;Jordan v. Lexington, 133 Miss. 440, 97 So. 758; Saxon v.Houlka, 107 Miss. 161, 65 So. 124.

The deceased may have been guilty of contributory negligence in failing to look through or over the weeds and observe the unguarded edge of the bridge on the north side which had no banister railing on it, yet the failure to have seen the danger would amount to no more than contributory negligence, which would go only to the diminishment of the damages.

The deceased may have previously known that the bridge was only twelve feet wide and the road twenty feet wide and that the four-foot abutments on either side were grown up in weeds, and that, if she approached the bridge too far on the north side of the road, she would be precipitated into the creek, yet this would not bar the right to recovery if the municipality was guilty of any substantial negligence, proximate and contributing, in failing to maintain the street and bridge in a reasonably safe condition for the public travel. And this last question should have been submitted to the jury under proper instruction, because the evidence is conflicting in that regard.

If instruction No. 2 had not told the jury that the speed of more than ten miles an hour would defeat recovery, and had instructed it that, if the sole and proximate cause of the injury was the negligence of the deceased with reference to the manner in which she drove the car, then the jury would have been properly instructed. But the instruction does not do this. It eliminates the question as to whether or not the roadway and bridge were maintained in a reasonably safe condition for the purpose of travel, and directs the jury to find for the defendant if the deceased could have safely crossed the bridge, even though the condition at the bridge was dangerous, and was not reasonably safe for the public travel.

We think this instruction was erroneous and prejudicial to the plaintiff's case, and must result in a reversal and a new trial.

There is another instruction complained of, but we deem it unnecessary to discuss it, because of the reversal for the error in the above instruction, and the second complaint may not arise again.

But the appellee contends that, even though the instructions are wrong, yet the case should be dismissed because the appellant Joe Dent was a bankrupt at the time of the filling of the suit, and, for that reason, he cannot prosecute the action because it can only be maintained by the trustee in bankruptcy.

We do not think the contention is sound in this case for several reasons, but we shall mention only one, and that is that personal actions of this kind in tort do not pass to the trustee in bankruptcy. Hanson v. First National Bank of Center,61 Tex. Civ. App. 18, 128 S.W. 1147; Sibley v. Nason,196 Mass. 125, 81 N.E. 887, 12 L.R.A. (N.S.) 1173, 124 Am. St. Rep. 520, 12 Ann. Cas. 938; Cleland v. Anderson, 66 Neb. 252, 92 N.W. 306, 96 N.W. 212, 98 N.W. 1075, 5 L.R.A. (N.S.) 138. We think it unnecessary to discuss the question of whether or not, if our view above is wrong, the suit may be prosecuted by appellant for the benefit of the trustee in bankruptcy, or whether the trustee may not intervene at some juncture in the proceedings.

In view of the conclusions reached above, the judgment of the lower court is reversed, and the case remanded for a new trial.

Reversed and remanded.