133 So. 2d 610 | Miss. | 1961
This is a damage suit filed by the heirs-at-law of James Lee Hawkins, deceased, against the City of Natchez, Mississippi, in the Circuit Court of Adams County, Mississippi. The defendant filed an answer, and a jury trial was had, resulting in a verdict and judgment in favor of the defendant, the City of Natchez. Appellants made a motion for a new trial, and from an adverse judgment, the case has been appealed to this Court.
The evidence introduced shows that on July 26, 1959, about 11 o’clock A. M. on a rainy day, the intestate, James Lee Hawkins, a child of four years of age, went with his brother and sister to a grocery store on the
The evidence reveals that water from other streets passes down Woodlawn Avenue into the open drainage ditch above-described. The declaration filed by appellants charges, among other things, that the City of Natchez was negligent in failing to maintain a reasonably safe sidewalk, drainage ditch and culvert at a place where little children congregate to go to a nearby school, and that this failure of the City to maintain a reasonably safe sidewalk, culvert and drainage ditch was the proximate cause of the death of the child.
The appellants complain on appeal to this Court that the lower court should have granted a judgment in favor of the appellants; that certain instructions given to the appellee, the City of Natchez, were erroneous; that the testimony of the witness John Banks, a former city engineer, who was offered to show certain recommendations made to the City of Natchez was erroneously rejected by the court; and that the minutes of the Mayor and Board of Aldermen referring to the open ditch on Wood-lawn Avenue was not permitted to be introduced in evidence and that this was an error.
The appellants complain that eleven instructions granted appellee were erroneous because they advised the jury that the City had fulfilled its duty when it provided safe streets for persons using them for their customary use, while exercising reasonable care for their own safety, and that the City was not required to cover the entrance to underground culverts, provided they were in a reasonably safe condition for persons using them for their accustomed use and in an accustomed manner, while exercising due care for their own safety. The appellants particularly complain of the instruction which advises the jury that the City is not liable for the condition of the sidewalk and culvert where the said sidewalk and
We have carefully examined the instructions granted appellee and appellants, and are of the opimon that no error was committed in the granting and refusing of instructions in this case.
We find no error in the fact that the court rejected the testimony of John Banks or in the refusal of the introduction of the minutes of the Mayor and Board of Aldermen of the City of Natchez because this evidence could have gone only to the question of ‘ ‘ notice ’ ’ to the City of the condition of the open ditch, the culvert and the sidewalk, and the appellee City of Natchez had admitted having notice of the situation here sued upon. Moreover, this situation had existed for a long period of
We have carefully examined the record in this case as to the testimony and pleadings, and are of the opinion that there was no error committed by the trial court in submitting this case to the jury, that the issue of whether or not the City was negligent in the construction and maintenance of its sidewalk, drainage ditch and culvert, at the time and place here in evidence, was a question of fact to be determined by the jury. The jury having found in favor of the defendant on proper instructions, the case should be, and is, hereby affirmed.
Affirmed.