110 So. 833 | Miss. | 1926
The original declaration filed by the appellee averred that on February 8, 1926, a private party dug a ditch across the sidewalk on Filmore street in said city for the purpose of making a sewerage connection with the residence of an abutting property owner; that the ditch was dug in the afternoon of the day on which the injury occurred, and was not completed and not filled up before nightfall, but was left open across the sidewalk from working hours until the happening of plaintiff's injury several hours after nightfall. This declaration further alleged:
That "said private party did not fence off said ditch across said street and did not erect guards for stopping pedestrians across said sidewalk, but left lighted only one lantern to warn passing pedestrians using said sidewalks of said ditch across same; that the defendant city had notice of the ditch, but provided no fences, guards, barriers, or lights as a warning to passing pedestrians; that, on the day in question, and several hours after nightfall, the plaintiff, who was returning to his home over said sidewalk, reached the place where the ditch was dug, and, there being no guard or fence erected around the same, and seeing no light thereat, necessarily and unavoidably stepped into the ditch, and was violently thrown to the ground, resulting in the fracture of one of his legs, and that the said lantern left lighted by the private party who dug the ditch had, before the ditch was reached by the plaintiff, become extinguished."
To this declaration, the appellant demurred on the ground that the declaration charged no negligence, and stated no cause of action against the defendant, but alleged that the ditch was dug by a private party, and that said private party who dug the ditch left a lighted lantern to warn pedestrians using said sidewalk. This demurrer *804 was sustained, and the appellant thereafter filed an amended declaration, in which the averment that the private contractor left a lighted lantern to warn pedestrians of the presence of the ditch was omitted, and it was alleged that the defendant allowed a private party to dig the ditch in question, and negligently failed to provide sufficient lights, fences, barriers, or guards, as warnings of and protection from said open ditch for the benefit of pedestrians along said street, and negligently failed to exercise the prudence required of it to warn and protect parties passing along said street from said open ditch. To this declaration, the appellant filed a plea of the general issue and gave notice thereunder that it would offer evidence to show that it had no knowledge of the existence of the ditch, and that the private contractor who dug the ditch properly guarded the same by placing, at said ditch, two oil lanterns with red chimneys, both of which lanterns were in good condition, filled with oil, lighted, and left burning as a warning of the presence of said ditch, and that said lanterns properly guarded said ditch and disclosed the same to any one approaching it.
Counsel for the respective parties are in accord as to the legal principles which measure the rights and duties of a municipality in respect to dangerous obstructions or excavations in its streets, which may be stated as follows:
First, a municipality is not an insurer of the safety of its streets and sidewalks, but is only required to exercise ordinary care to keep them in a reasonably safe condition for the use of the public; and, second, where necessary excavations and openings in streets and sidewalks have been made, the duty of the municipality is to use ordinary care to warn travelers of the danger, and, if the dangerous condition has been created by a third party, and such party has erected or placed a suitable warning of the danger, the municipality is relieved of the necessity of taking like precautions, and it may avail itself in its defense of the warning placed by the author of the danger; *805 and, third, if a municipality trusts to others to see that guards or warning are properly kept up, it will be liable for the consequences of its negligence, but, where sufficient warning of existing danger has been provided, and the same has been removed, by accident or otherwise, without negligence on the part of the party charged with the duty of providing the warning, and the municipality has no actual notice of such removal, and is not charged with notice thereof by the lapse of time, it is not liable for an injury resulting from the absence of such warning.
In the application of the foregoing legal principles to the facts here in evidence, counsel are not in agreement, and the appellant very earnestly insists that the peremptory instruction requested by him should have been granted, for the reason that the evidence shows without conflict that a proper and sufficient red lantern was placed at the excavation on the sidewalk when the workmen left the job in the late afternoon, and that said lighted lantern continued to burn until a few minutes before the injury to appellee, and that the same was thereupon extinguished without the knowledge or fault of the appellant or the private contractor who had placed the warning.
After a careful and repeated examination of the testimony of the several witnesses who testified as to the presence or absence of this lighted red lantern, we are of the opinion that there is sufficient in the evidence to require the submission of the issue to the jury. We deem it unnecessary to set forth, in detail, the testimony of the numerous witnesses on this point. That no lighted lantern was on the sidewalk when appellee was injured, which injury occurred between 7:30 and eight o'clock at night, is undisputed. The foreman who was in charge of the digging of the ditch from the middle of the street to and across the sidewalk testified that, in the course of digging the ditch, they reached the sidewalk about twenty minutes before five o'clock in the afternoon, and that digging the trench across the sidewalk was the last work done by them that day; that they quit work about 5:15 *806 o'clock, and he then lighted two red lanterns and placed one in the middle of the street, and the other on the sidewalk at the excavation, and the workmen then immediately left the scene. Other witnesses testified that these two lanterns were so placed and were burning up to about 7:20 o'clock that night. On the other hand, J.C. Hinton, a witness for the appellee, testified that he passed along this street after the ditch was dug across the sidewalk, and after the workmen were gone, and that a lighted lantern was then at the excavation in the middle of the street, but the other lantern was unlighted, and was sitting, not on the sidewalk, but in the street, near the edge thereof. It is true that this witness fixed the hour at which he passed along this street and saw these lanterns as being four o'clock in the afternoon, and appellant argues from that fact that there is consequently no conflict between the testimony of this witness and of those who testified that the lanterns were lighted and placed after five o'clock. The witness Hinton testified that he was delivering milk on this street when he saw these lanterns, one lighted and the other not lighted, and he fixed the hour by the fact that he customarily delivered milk on that street at about four o'clock, but, regardless of the exact hour, he testified positively that the ditch was dug across the sidewalk, and the workmen were all gone from the scene when he observed the lighted lantern in the middle of the street, and the unlighted lantern in the street near the sidewalk. The foreman in charge of the work testified that the ditch was dug across the sidewalk about five o'clock, and that, before they left the work, he lighted and placed the lanterns, so it appears to us that there is clear conflict in the testimony as to whether, as a matter of fact, a lighted lantern was placed on the sidewalk.
The appellant also complains of the action of the court in submitting to the jury the question of the sufficiency of the lantern as a warning, if they believed such a lantern was placed on the sidewalk, and in refusing to direct a verdict for appellant if they believed from the evidence *807 that a lighted red lantern was placed on the sidewalk next to the ditch across the same. While it is true that the appellee testified that he would not have been injured if a lighted red lantern, similar to the one that was in the street, had been placed on the sidewalk, we do not think the appellant can complain of the error, if any, in refusing this instruction and submitting to the jury the question of the sufficiency of the warning, for the reason that this issue was submitted to the jury at the instance of appellant. None of the instructions granted to the appellee embodied this issue, while it was expressly submitted in at least five of the instructions requested by and granted to the appellant.
The appellant complains of the admission of testimony to the effect that the street commissioner, the agent of the city, who was in charge of the streets and sidewalks, stated after the injury that he passed along this street in the afternoon that the trench was dug, and that he saw it, and knew it was there.
"The existence or absence of knowledge may be shown by declarations of the person whose knowledge is of importance, even though such declarations were made a considerable time before or after the time involved in the inquiry, provided there is not such an element of remoteness as destroys materiality." 22 C.J. par. 302 (9).
And this statement of the appellant's agent was admissible, not to establish the existence of the excavation, but as tending to show that the appellant had actual knowledge of its existence prior to and at the time of appellee's injury.
The only other assignment of error based upon the admission of testimony presents no reversible error, if error at all. On thevoir dire examination of the jurors, counsel for the appellee was permitted to examine them, and especially an insurance agent who was a member of the panel, as to whether they were interested in, or represented, any insurance company engaged in writing indemnity insurance, and the appellant assigns this as *808
error. In the case of Herrin, Lambert Co. v. Daly,
Finally, the appellant contends that the damages awarded are so grossly excessive as to indicate a disregard of the evidence as to the nature and extent of appellee's injuries, and to evince bias and prejudice on the part of the jury. The evidence in this case shows that, about thirteen years before the injury here involved, the appellee's right leg was amputated several inches below the knee; that since that time he had been using an artificial limb; that, at the time of the last injury, he was *809 engaged in the barber's trade, and was earning from forty to forty-five dollars per week. In the injury here involved, the bone of appellee's right leg was crushed above the knee, and since this injury he has been unable to wear or use the artificial limb, and is unable to perform the work of a barber, or to engage in any other gainful occupation. From X-ray photographs of the injured leg, a physician testified that the large bone of the leg was crushed, and one portion of it driven into the other, so that at the time of the trial the bones had not united. He further testified that, in his opinion, the injury was permanent, and that he would never be able to use an artificial limb without considerable pain and discomfort. The appellee was thirty-eight years old, and it was shown that he had suffered intense pain as a result of his injuries. At the time of the trial, he still suffered pain in the injured leg, and there was evidence to the effect that he would probably continue to suffer pain and discomfort throughout his life. Upon this evidence, we are unable to say that the verdict is so grossly excessive as to evince corruption, passion, bias, or prejudice on the part of the jury, or that it is so grossly excessive as to warrant us in disturbing it.
We do not think any of the assignments of error present sufficient grounds for a reversal of the judgment of the court below, and consequently the judgment must be affirmed.
Affirmed.