Saxon v. Town of Houlka

65 So. 124 | Miss. | 1914

Reed, J.,

delivered the opinion of the court.

T. F. Saxon was driving along a street in the town of Houlka. While going through a place in the street covered by water, a front wheel of his buggy dropped into a hole, and he was thrown out with some force. He sustained painful injuries, one or two of his ribs having been broken, and he brought suit for damages against the town. Upon the trial, at the end of the introduction of his evidence, the court sustained a motion to exclude the testimony and directed a verdict in favor of the town.

The hole, into which the buggy fell, was covered with mud and water and could not be seen. Mr. Saxon knew that the street was not in genéral good condition at the point where he was injured. He did not however know of the existence of the hole, for it was concealed. He was not aware of the dangerous condition of the street because of the hidden hole, and that it was unsafe for travel. The street was open for general use.

It is shown by the testimony that the town' officials knew of the defective condition of the street. The may- or had special knowledge of it, by reason of an experience in driving over it a few days prior to Mr. Saxon’s fall. The aldermen had their places of business near to the defective place. Application had been made to the municipal board for the work of repairing it, and it was repaired just after the injury. The town authorities should not have allowed this street to get into such defective condition.

We do not see, from the record, that Mr. Saxon failed to exercise proper care and diligence in driving over the defective part of the street. He was using the street in the ordinary way, and he had a right to so use it. Pascagoula v. Kirkwood, 86 Miss. 630, 38 So. 547; Birdsong v. Mendenhall, 97 Miss. 544, 52 So. 795.

The court erred in. excluding appellant’s testimony. This case should have gone to the jury.

Reversed.