Pomes v. McComb City

83 So. 636, 121 Miss. 425

• Court: Mississippi Supreme Court
• Decided: October 15, 1919
• Docket: No. 20884
• Status: Published

Opinion

Cook, J.,

delivered the opinion of the court.

The declaration in this case, omitting the formal parts, is in these words, viz.:

“Mrs. M. J. Pomes, a resident citizen of Pike county, Mississippi, plaintiff, sues the city of McComb, a municipal corporation existing under and by virtue of the laws of the State of Mississippi, defendant, and for cause of action would show unto the court the following statements of facts, to wit: That whereas, on, heretofore, to wit, at 4 p. m. on Friday, January 26, 1917, while returning home from down town, and while crossing the regular crossing on Third street going w’est from D. C. Lenoir’s on Louisiana avenue, and w'hile walking along the said crossing, which she assumed to be in a perfectly safe condition, her foot struck a brick or stone which the city had carelessly, negligently, and knowingly permitted to remain in the said pathway, and which was protruding some two or three inches above the ground, and on striking the said obstruction, on account of its size and it being thoroughly imbedded in the ground, threw your plaintiff violently on the ground, and caused her to suffer great mental pain and anguish, and crushed her arm and nose, and dislocated her hip, and severely lacerated arm and other parts of her body, and injured her internally.

“Your plaintiff wmuld show that on account of the said injury so received she remained in bed a number of days, during which time she suffered great pain and anguish, and had to be and was under the care and treatment of skilled physicians, and has since been under the said treatment, and is so informed and charges that she is permanently injured. Plaintiff furthr charges that the said crossing wrns not only regularly used by pedestrians, but was worked and supposed to have been kept up by the city, and that it was the duty of the city to keep the sa-id crossing in a reasonably safe condition, and it is guilty of gross negligence in knowing and permitting the said obstruction to remain in the street. Wherefore, by reason of the gross negligence and carelessness of the defendant in knowing and permitting the said obstruction to remain therein before indicated, she hereby sues and demands judgment of the city of McComb in the sum of five thousand dollars and all costs.”

The defendant demurred to the declaration, the demurrer was sustained, and plaintiff appeals to this court.

We have reached the conclusion that this appeal is ruled by the case of City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L. R. A. 1916A, 482.

There is no merit in the argument that the learned circuit judge should have overruled the demurrer and heard the case as developed by the witnesses. It will be presumed that the plaintiff stated her case in her declaration, and certain it is that she could not make a stronger or different case from the case stated in her declaration.

Affirmed.