134 F.2d 464 | 5th Cir. | 1943
This is an action by appellant to recover damages for personal injuries sustained'by her while a pedestrian on a public sidewalk in the City of Columbus, Mississippi. On the trial below, at the close of the plaintiff’s testimony, the court gave a peremptory instruction to the jury to find a verdict for the defendant. This appeal challenges the correctness of that ruling.
The evidence shows that the accident occurred after dark at a place on the sidewalk where there was a precipitous drop of twelve inches. The appellant testified that she was proceeding carefully but did not see the step-off before she fell, that it was the stepping off that hurt her, “that and the fall”. In a deposition previously taken, but not introduced, appellant had testified that there was gravel on the pavement; that this caused her foot to slip; and that she “imagined” the gravel as much as anything else caused the accident.
The court below thought it clear that she turned her ankle and fell when she stepped down on a piece of gravel; and since there was no evidence to show that the city had any actual or constructive knowledge of the gravel being there, the motion on behalf of appellee for a peremptory instruction in its favor was sustained. In so doing we think the court fell into error. It was a question for the jury, not for the court, to determine the worth and weight of appellant’s testimony and which of her conflicting statements, if either, was true. Evidence of contradictory statements was admitted only to discredit the witness; it was not affirmative evidence of the facts stated.
The remaining question is whether the evidence, if believed by the jury, was sufficient to warrant the inference that the injuries complained of were directly and proximately caused by the negligence of appellee in failing to exercise ordinary care to maintain its sidewalk in a reasonably safe condition for pedestrians using ordinary care.
Presuming as we must that the city knew the step was there, liability in this case depends upon whether or not the concrete sidewalk was so negligently constructed as to be dangerous to pedestrians using ordinary care. The city is not an insurer of the safety of such persons, but is liable only for injuries to them resulting from its negligence. The burden of proving such negligence rests upon the plaintiff throughout the trial, and never shifts to the defendant, though the burden of rebutting inferences from facts already proven may shift from one party to the other as the trial proceeds. The evidence below was sufficient to warrant, but not to compel, an inference by the jury that appellant’s injuries were the direct and proximate result of the negligent construction of the sidewalk.
The appellant testified that she had never been on that street before, and
The law of Mississippi, which governs in this case, does not require sidewalks to be so constructed as to secure absolute immunity from danger for pedestrians that use them.
The judgment appealed from is reversed, and the cause remanded to the district court for further proceedings not inconsistent with this opinion.
Reversed.
Jones on Evidence, Vol. 3, p. 1564.
Birdsong v. City of Clarksdale, 191 Miss. 532, 544, 3 So.2d 827, 830.
43 Corpus Juris, § 1835, p. 1059; 25 Am.Jur., p. 710, § 415.
City of Greenville v. Laury, 172 Miss. 118, 122, 159 So. 121, 122.
City of Meridian v. Crooks, 109 Miss. 700, 69 So. 182, L.R.A.1916A, 482.
Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452, 30 Am.St.Rep. 521; Walker v. Mayor, etc., of Vicksburg, 71 Miss. 899, 15 So. 132.
Whitfield v. Meridian, 66 Miss. 570, 6 So. 244, 4 L.R.A. 834, 14 Am.St.Rep. 596; Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827. See, also, Lebanon v. Graves, 178 Ky. 749, 199 S.W. 1064; Blyhl v. Waterville, 57 Minn. 115, 58 N.W. 817, 47 Am.St.Rep. 596; Duncan v. Brown, 69 Okl. 246, 172 P. 79, where the sidewalk was six inches lower than connecting sidewalk; Frankfort Gen. Ins. Co. v. Milwaukee, 164 Wis. 77, 159 N.W. 581, where there was a drop . of one foot from sidewalk built along a street across an alley entrance; Robinson v. Oconto, 154 Wis. 64, 142 N.W. 125, where there was an abrupt drop of eight inches; Blume v. New Orleans, 104 La. 345, 29 So. 106, where there was an abrupt rise of five inches between the walks of two proprietors; Tabor v. St. Paul, 36 Minn. 188, 30 N.W. 765, where a difference of six to nine inches was held sufficient evidence of a defect to go to the jury; 43 C.J. § 1795, pp. 1017 and 1018.