DISSENTING OPINION. I do not dissent from the law applicable to this case, for the following cases, City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L.R.A. 1916A, 482, City of Greenville v. Laury, 172 Miss. 118,159 So. 121, and Gould v. Town of Newton, 157 Miss. 111,126 So. 826, announce the same principles. The difficulty comes when these principles are to be applied to the specific facts in each particular case.
The court below submitted the question of liability to a jury as to whether Matthews was the aggressor in the fight involved in this suit, holding that if he was not the aggressor, he had the right to use the street in retreating from danger.
The situation in the case at bar is that the city had laid out a street a certain width, but the property owners *Page 54 had set their buildings back approximately 19 inches from the sidewalk, and had filled in this space with concrete on a level and connected with the street in such manner as to indicate that it was a part thereof. On this concrete fill between the buildings and the sidewalk there had been placed a penny weighing scale which extended onto the sidewalk proper 4 inches or more, and which was of sufficient height and width as to constitute a danger present in the street, and this the mayor admitted was known to the city for a long time, and which the city took no steps to have removed.
The rule is that if any injury can be reasonably contemplated from a dangerous situation, or an improperly constructed street, the city will be liable, although it might not contemplate a particular injury therefrom. The jury was warranted in believing that Strahan was the aggressor, for Matthews so testified, and, as I view the record, there is nothing to contradict his testimony in that regard. According to the evidence, Strahan drew his knife and assaulted Matthews, whereupon he struck Strahan with his fist, and backed away pursued by Strahan. Near the sidewalk was a Coca-Cola sign on the concrete laid by the property owner, and he held this sign between himself and Strahan, who was advancing with a drawn knife. Matthews was retreating backward, being unable, under the then conditions, to turn and flee, and was acting with the discretion attributable to a prudent man under like circumstances, according to the evidence of appellee, and the jury was warranted in so finding. If Matthews had been the aggressor in the difficulty, he might be estopped by his own wrong from claiming damages; but the testimony shows that Strahan was the aggressor. A person has the right to use streets for traveling and for retreating from danger, or when he is trying to prevent an injury to himself in the manner disclosed by the evidence in the case at bar. *Page 55
While not basing this opinion on the fact that the paved part between the original sidewalk and buildings constituted a part of the street, I think it did so, because when the concrete was extended from the sidewalk to the nearby buildings, making the appearance of a street the entire way, the public had the right to regard it all as the street, and manifestly the city so treated it, as well as the traveling public.
Under these facts, I think there was liability to appellee for his injury, and, since it was severe and serious, the verdict is not excessive, and I think the judgment should be affirmed.