City of Hazlehurst v. Matthews

Appellee brought this action in the circuit court of Copiah county against appellant, City of Hazlehurst, to recover damages for an injury received by him in falling over a penny scales platform which protruded a short distance over a sidewalk of the city, upon the alleged ground that such protrusion made the sidewalk unsafe for pedestrians, and that the city was negligent in permitting it. There was a trial resulting in a verdict and judgment in appellee's favor in the sum of $10,000. From that judgment the city prosecutes this appeal.

The court refused the city's request for a directed verdict. That action of the court is assigned and argued as error. We are of the opinion that the request should have been granted, and reach that conclusion from the following considerations: Gallatin street runs east and west; both the street and sidewalk are paved; the sidewalk on the north side of the street is 9 feet wide. Some years ago Allred and Segrest constructed two brick business buildings on the north side of the street, the south walls being about 19 inches from the north edge of the sidewalk; they had this space of 19 inches paved. They permitted another person to place the penny scales against the dividing wall of the two buildings; the platform to the scales was 13 1/2 inches wide at the bottom, 11 1/2 inches wide at the top, approximately 5 inches high and 23 inches long; therefore, the platform extended over the sidewalk about 4 1/2 inches. Appellee had been an employee of Allred for several years. He was thoroughly acquainted with the location of the scales and their protrusion over the edge of the sidewalk. He and one Strahan were engaged in a fight at night, and, according to appellee's testimony, Strahan was the aggressor and was pursuing him along the sidewalk with a drawn knife. In his retreat appellee was backing along the sidewalk when he stumbled over the protruding platform of the scales. The fall resulted in a serious injury.

There is no trouble about the governing principles of law. The difficulty comes in their application. Whether a directed verdict should be granted is always a mixed question of law and fact. It is true that the court is not called upon to decide the issue of fact one way or the other, but it is called upon to decide whether there is an issue of fact under the law to go to the jury. The duty of a municipality to keep its streets and sidewalks reasonably safe for the traveling public is not an absolute one. Reasonable care to keep them reasonably safe for those using them with due care is the criterion. If the obstruction or the defect is one that the municipality in the exercise of ordinary care could not have reasonably foreseen would cause some injury, there is no liability.

In City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L.R.A. 1916A, 482, the defect in the sidewalk causing the injury was a depression about 3 inches deep, 3 inches wide, and the length of one or two bricks. Mrs. Crook stepped into this hole, tripped and fell, and was injured. The court held that there was no liability on the part of the city; that the defect was one that the city in the exercise of ordinary care could not have reasonably foreseen would result in injury to a person using the sidewalk with due care.

In City of Greenville v. Laury, 172 Miss. 118, 119,159 So. 121, the plaintiff caught her heel in a crevice in a street and fell. The crevice was "half-inch to three inches in width and depth and 18 inches to 2 feet in length." The court followed the Crook Case and others along the same line.

In Gould v. Town of Newton, 157 Miss. 111, 126 So. 826, this doctrine was applied. On its facts, however, it was close to the feather-edge whether or not a directed verdict was proper. The facts in that case were that the obstruction was in the traveled way for pedestrians, and was a "two by four stake which was driven in the ground, and protruded about an inch above it." The defects in the other two cases were depressions instead of protrusions.

Here we have a sidewalk 9 feet wide, wide enough for at least four persons to walk abreast without crowding or inconvenience, and still be free of the danger of coming in contact with the protruding platform of the scales.

Reversed, and judgment here for appellant.

McGehee, J., did not participate in the decision of this case.