City of Pascagoula v. Kirkwood

| Miss. | Apr 15, 1905

Tbuly., J.,

delivered the opinion of the court.

The sole question presented requiring any serious consideration is whether or not, under the circumstances disclosed by this record, appellee was so manifestly guilty of contributory negligence that the court should have.instructed the jury peremptorily against her on this point. An inspection of the record compels us to answer this query in the negative. That the pavement or sidewalk on which appellee was injured was defective, and, under cértain circumstances, unsafe, cannot be gainsaid. That the city authorities were advised of this condition is not denied. That the appellee on the occasion in question was using the sidewalk in the customary manner, with due caution, the uncontradicted testimony clearly demonstrates. It is true that, she was aware of the defect in the sidewalk; fhat she knew its locality; that she was on the occasion of the injury not unmindful of its existence nor even temporarily forgetful of its location. But all this does not necessarily make the mere use of the sidewalk, of and in itself, such negligence as will, by operation of law, prevent recovery. Every city rests under the legal obligation to maintain its sidewalks in a reasonably safe condition for the use of pedestrians. This obligation rests as well for passage by night as by day. The pedestrian is entitled to use the sidewalks at any time, and may at all times rely on the mandate of the law which imposes upon the municipality the burden of exercising a reasonable diligence in the construction and maintenance of its sidewalks, and makes it responsible for all damages resulting from any default in the observance of this duty. A pedestrian is not required by law to leave the sidewalk and go out into the street under conditions *634such as surround the scene of the accident in the instant case, and risk the danger of passing electric cars or chance, vehicles, in order to avoid a defective sidewalk which the city has negligently permitted to continue in a dangerous condition after notice of the existence of the defect. It is true that knowledge of the unsafe condition demands an additional degree of ..care by the pedestrian, commensurate with the danger of the .situation; but the testimony of the appellee, which is in no wise discredited, and which bears the impress of perfect truth, shows tfrat she discharged this duty of extra care, and that the injury was solely attributable to the negligence of the city. In view of the extent of the bruises and injury inflicted and the ■ duration of the suffering, the city has cause of gratulation that the verdict was so moderate.

Affirmed.