Summary
From the circuit court of Simpson county.
Hon. Robert L. Bullard, Judge.
Birdsong, appellant, was plaintiff in tbe court below; tbe town of Mendenhall, appellee, was defendant there. From a judgment predicated of a peremptory instruction in favor of defendant tbe plaintiff appealed to tbe supreme court.
Tbe plaintiff himself testified that be knew of the defect in ■the street of which be complained; that be bad seen it a number of times before be was injured but that in attempting to usetbe street be was careful and prudent. His foot was caught in. a bole and be was tripped and fell and sustained tbe injuries for which be sued.
The peremptory instruction in favor of the municipality seems to have been -given upon 'the erroneous idea that it was the duty of the plaintiff, under the circumstances described by him, to abandon the sidewalk. Under the theory adopted by the trial court, if one knows that a sidewalk is defective, he may not undertake to use it even with the exercise of great care in his use of it to avoid injury to himself,^ but if there is ground adjacent to the sidewalk left for him to walk on which is suitable, then he must abandon the use of the sidewalk and use the ground as a passage way.
Whether one has used a sidewalk carefully is a question for the jury. Whether he should have used it at all is a question for the jiiry. It is the duty of the municipality to keep up its sidewalks. It cannot permit them to remain in that condition until it becomes notorious, and then require every pedestrian to abandon them. Whether the walks are defective or not, they may be used by the public. Knowing of the defect is only one fact to be taken into consideration when it becomes necessary to decide whether the one injured is guilty of contributory negligence. In such cases the question is not alone whether he had knowledge, but, having such knowledge, whether it was negligence on his part to undertake to use the sidewalk in the manner in which he did use it. Pascagoula v. Kirkwood, 86 Miss.' 630.
It will be noted, too, that in the Pascagoula case, supra, the injured party, Mrs. Kirkwood, knew of the defect complained of, and had not temporarily forgotten about it, but was keeping it in her mind and was regulating her movements to avoid the defect, and while exercising due care, she was injured. That is precisely the ease at bar. Birdsong knew that the sidewalk was defective, and he concluded that he could use it, and was proceeding with all due care, but despite such due care he was injured. The trial court in effect held that he did not examine the ground near the sidewalk to find out whether it was muddy. Appellant testified that it was raining and had been raining for some time, and certainly it may be presumed that he might -use his reason and-experience and know that the ground was muddy. Water falling upon bare earth always makes mud. Appellant knew that this happened. It was not necessary for him to make an examination to see if this had happened. Natchez v. Lewis, 90 Miss. 310; Meridian v. McBeth, 80 Miss. 485; Jackson v. Carver, 82 Miss. 583.
It was the grossest negligence on the part of appellant to attempt to use the sidewalk as he did with full knowledge of its dangerous condition and especially when he had ample room on the ground constituting a part of the sidewalk on which he could have traveled with absolute safety and with no inconvenience, save that of getting dirt or perhaps mud on his feet.
The case of Pascagoula v. Kirkwood, 86 Miss. 630, cited by-appellant, is not in point here. In that case* the plaintiff was compelled to choose between a defective sidewalk and the street where she was liable to be run over by vehicles or electric cars. In this case there was no such danger. There certainly could have been no danger in walking in Mendenhall on the bare ground, even if it had been a little muddy. The sidewalk was seven feet-wide, four feet of which was covered with boards and the remaining three feet being bare earth. Three feet of space was ample room for appellant, and he was familiar with the condition of the walk. It naturally follows that none of the authorities cited by learned counsel for appellant are applicable.
Negligence is a mixed question of law and fact; the court declaring what is negligence, and the jury finding the facts, in the particular case, and reports to the court what such facts show upon .the question of negligence, viewed in the light of what the court has said in regard to negligence. In this case, the question is a mixed one, and therefore it was the duty of the trial court to decide the question. "When the evidence neither proves, nor tends to prove liability on the part of a defendant, or where the facts shown in evidence make it clear that the plaintiff was guilty of contributory negligence, for which damages are sought to be recovered, then it is for the court alone to determine the liability. McMurtry v. Louisville, .etc., B. B. Co., 67 Miss. 604.
If it is for the court to say, in a majority of cases, what is, and what is not negligence as an abstract proposition. When, therefore, the facts of a given case are undisputed, and the inferences, or conclusions to be drawn from the facts, are undisputable; when the standard of duty is fixed and defined, so that a failure to attain it is negligence beyond cavil, then contributory negligence is a matter of law.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
