74 So. 133 | Miss. | 1916
delivered the opinion of the court.
Burnsville, in Tishomingo county, is a village duly incorporated. Fulton or Jefferson street leads from the center of the town in a northerly direction. Across this street near the corporate line was a bride or culvert, duly placed by the municipal authorities. At one end and on the south
' Counsel for appellee frankly concede that the defect in the street which caused the injury complained of had existed for several months, and that the municipal authorities were charged with notice thereof. The only way in which appellee justifies the propriety of the peremptory instruction granted by the trial court is the contention that the plaintiff was not in the exercise of due care and caution for his own safety. It is contended by appellee that before plaintiff can recover he must show that at the time of his injury he was exercising due care, especially when he knew of the admitted defect over which he was to travel. In view of this argument we have carefully examined the testimony of plaintiff and his witnesses, and find the positive testimony of plaintiff himself that his horse was ina“ slow trot,’ ’ and that plaintiff thought he had passed the dangerous place. Plaintiff and his two companions were each riding horseback, and at the time of the injury almost abreast. Plaintiff says:
“I thought we had passed it; but it was a little dark and I turned out to the right of this young man, and it was between me and the other one a little bit,” and ‘fit was tolerable dark. ”
The testimony further shows that wagons and other vehicles could not cross this ditch or gully into which plaintiff’s horse stepped, but were compelled to go around to one side and somewhat out of the beaten way. The proof is abundant to show that plaintiff’s horse did step into the hole and fell. The fact that a good saddle horse did in fact stumble or fall by reason of the defect is a strong circumstance that the street was in bad condition. The proof is also abundant to show that plaintiff was seriously and permanently injured.
-While the sole point stressed by counsel for appellee in his brief is the alleged want of due care on the part of plaintiff, in the oral argument counsel relied on City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L. R. A.
While municipalities are not insurers of the safety of their streets, there can he no question about their duty to keep streets in reasonably safe condition for persons traveling in the usual way and exercising due care for their safety. In meeting this obligation the municipality should not neglect any portion of the street, but should see that the street from side to side is reasonably safe.
It is true that the village of Burnsville is a small place. Counsel assert that it has only three hundred and fifty or four hundred inhabitants. While the size of the munioi-pafity and the amount of travel and traffic over the streets are circumstances which the jury may well consider in determining the negligence of the corporation, these circumstances would not relieve the village of liability under the case made by this record.
Generally the question of whether the street in the suburbs of a village like this is or is not defective must be regarded as a question of fact for the jury, deliberating under proper instructions from the court. It was accordingly error on the part of the learned circuit judge in excluding the plaintiff’s evidence and granting the peremptory charge.
Reversed and remanded.