DocketNumber: No. 33107.
Citation Numbers: 180 So. 620, 182 Miss. 315
Judges: <bold>Griffith, J.,</bold> delivered the opinion of the court.
Filed Date: 6/6/1938
Status: Precedential
Modified Date: 1/12/2023
Highway 51 is also a street in the town of Courtland, and the crossing for pedestrians in front of the Herron home had been in use for about ten years. The business and residential section of the town is west and southwest of the crossing and the Herron home. Northeast is the public school building and the residence of the superintendent. This crossing was used by the children from the west and southwest in going to and from school, as well as by others of the general public having occasion to use it. The appellants had not completed their contract with the Highway Commission; they were still engaged in the work. In the progress of the work they had destroyed this crossing; it had been made impassable. The grade at this point had been lowered 5 feet, leaving an almost perpendicular stepoff of that depth from the level of the old street to the new. No other crossing had been provided in its place, although a short distance above the grading was in such condition that the school children could and did cross it in going to and from school.
The appellee was awakened between 12 and 1 o'clock at night by her friend, Miss Bell, who was on the west *Page 332 side of the street opposite the Herron home. In a loud and distressed voice she told appellee to come, that the home of her aunt on the west side was in flames, and she feared that her aunt, and the only other occupant of the home, a lady, had been or would be burned up if not rescued.
Appellee knew the crossing was impassable, but, under the excitement and stress of the moment, she forgot that fact, and in attempting to make the crossing fell down the 5-foot step-off, breaking one of her ankles and crushing some of the bones in both of her feet.
There was neither a barrier nor a light to give to pedestrians notice in the nighttime of the impassability of the crossing. The majority opinion holds that the appellants were under no obligation to give such notice. How such a holding can be reconciled with the decisions of our court, as well as those from other states, is beyond me. Wade v. Gray,
During the progress of the work by the appellants, it was their duty to properly guard the public especially in the nighttime, against the danger of this crossing. After the completion of their contract, the obligation was on the municipality to either establish another crossing or otherwise take reasonable steps to guard against injuries at the old crossing.
Ethridge, J., concurs in this opinion.