BEFORE BROOM, PRATHER AND ROBERTSON
ROBERTSON, JUSTICE, FOR THE COURT:
On December 13, 1980, Don K. Locklar and his automobile encountered a defective and negligently maintained water system manhole cylinder at the intersection of Louisiana Street and Virginia Street in the City of Jackson. He suffered painful and disabling personal injuries, as well as property damage.
On February 19, 1981, Locklar, the plaintiff below and appellee here, filed this action in the Circuit Court of the First Judicial District of Hinds County, Mississippi. Locklar named the City of Jackson, Mississippi, appellant here, as the sole defendant. He charged that the City of Jackson had negligently maintained its streets and, particularly, that it had allowed to exist a dangerous and defective condition at the intersection of Virginia Street and Louisiana Street. The jury returned a verdict for Locklar and assessed his damages at $27,000.00.
The City of Jackson then timely filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, or, in the alternative, for a remittitur. Upon denial of these motions, the City of Jackson has perfected this
We will summarize the facts of this case. Because of the jury's verdict in favor of Locklar, we will resolve all conflicts in the evidence in his favor. We will also draw in Locklar's favor all reasonable inferences which flow from the testimony given.
On the evening of December 13, 1980, yuletide merriment was Locklar's chosen fare. He joined several friends at the Scotch Maid Lounge in Jackson. All enjoyed several hours of reminiscing and revelry. The spirit of the season led him to partake of other spirits. Still, there is no evidence that Locklar was drunk or substantially intoxicated when he parted company with his friends near 10:00 o'clock.
On the way home, Locklar had his unfortunate encounter with a street in Jackson. He was proceeding in an easterly direction on Virginia Street. At the intersection of Virginia and Louisiana Streets, Locklar stopped for the stop sign controlling eastbound traffic. He began to enter the intersection. An instant later Locklar's automobile came to a jolting halt. He was thrown against the steering wheel and windshield. A protruding manhole cylinder was the culprit.
The manhole cylinder is on the west side of the intersection of Virginia and Louisiana. It is in the center of Virginia Street. One approaching from the west (as Locklar was) encounters a slight dip in the road before reaching the manhole cylinder.
The evidence was uncontradicted that the cylinder protruded above the asphalt surface of the street. The only question was how high. Locklar, who checked it the next day, said that the protrusion was approximately five inches. Tracy Davis, who drove the wrecker that towed Locklar's car in, said it was about three inches high. Dawn Sutton, who lived near the intersection of Louisiana and Virginia, said the cylinder was protruding above the level of the street about three or four inches. Joyce Kennedy, who also lives in the area, set the protrusion as between two to three inches on the night in question.
Locklar's theory, which was necessarily accepted by the jury, was that the front end of his car dipped immediately before reaching the manhole cover. Either his front bumper or the front cross-member on his 1975 Ford encountered the fixed, immovable manhole cylinder. The immovable object easily thwarted the substantial but, as it turned out, not irresistible force. AS a
result of the impact, Locklar's automobile sustained a seriously bent frame and was a total loss. No other explanation for what happened to Locklar and his automobile was seriously offered. *fn1
The critical issue at trial was whether the City knew of the condition of the manhole cylinder and the danger it posed. Dawn Sutton, who, as indicated above, lives at the intersection of Louisiana and Virginia, gave the history. She covered a period of approximately two and one-half years before this accident. Sutton recalled quite a few vehicles having come into contact with the manhole, often several a week.
Joyce Kennedy had lived in the neighborhood since 1975. She testified that she hit the manhole in June of 1980 and damaged her car. She reported this incident to the City. She also confirmed that on not ...