City of Meridian v. McBeath

80 Miss. 485 | Miss. | 1902

Terral, J.,-

delivered the opinion'of the court.

Á small post, two' and one-half -feet high, was set in Thirty1* first avenue at its. intersection with Eighth street. It is-located some two- feet-within .Thirty-first .avenue.'’ The avenue there was thirty feet or more wide, so that at least twenty-eight feet of the avenue was left free and open for public travel. The plaintiff below, in a two-horse buggy, was traveling in a brisk trot along Eighth street, and, coming to Thirty-first avenue, and desiring to proceed down it to the south, turned his buggy to the right for that purpose, when the axle of his buggy struck the post and precipitated him violently to the ground, from which fall he received serious injury. The city set the post where it was to protect from injury some terra cotta piping there laid and the sidewalk by the passage of wheeled vehicles over them. The injury happened about 10 o’clock at night. There were electric lights at the next street crossings north, south, and east, but none at the crossing where the post was set. The night was somewhat dark, and'the post was not seen by the plaintiff, though its being there should have been well known to him, as he lived nearby and was conversant with that particular corner. The city insists that it is proper for the post to be where it is for the protection of the sidewalk and tiling, and that, as' ample room on Thirty-first avenue, east of the post, was left for all necessary and safe travel along said avenue, it has performed its duty in that regard, and is not liable for any mishap to plaintiff; and especially it is not liable because plaintiff must have often seen the post, by reason of which he was guilty of contributory negligence in not avoiding the striking of it, that bars him of any remedy. The plaintiff, however, insists that all parts of the street should be free of dangerous obstructions, and that his momentary forgetfulness of the existence of the post should not be imputed to him as a fault. "Whether the coming of the street car along Eighth street to a point opposite the post at the time plaintiff's buggy struck it operated to prevent recollection of its being there, or whatever other cause produced temporary forgetfulness of the fact, should not, of itself, as wb "think, defeat a recovery. Such is the constitution of the mind, since the fall, at least, that its imperfections in this respect should not be imputed as a fault. A small, low post, set like this one, under the circumstances in evidence, was manifestly a dangerous impediment to plaintiff, if forgetful of its being placed at that point, and, of course, it would be dangerous to others under similar circumstances. The question of the negligence of the city in placing this post where, under the circumstances in evidence, it-could not be readily seen, and where, if not seen, it was likely to cause injury to one making the change of direction that plaintiff was making, and the question of negligence of the plaintiff under the circumstances of his hurt were severally questions for the determination of the jury; and their finding, made under instructions fairly submitting to them the respective contentions of the parties, we do not feel at liberty to reverse. The eases bearing on the decision here made may be found in the briefs of counsel.

Affirmed.