The opinion
CONCURRING OPINION.
WOODSON, J.
I fully concur in the opinion written in this cause by our learned Commissioner Roy, but in doing so I wish to add the following remarks:
(a) It is earnestly insisted by counsel for respondent that there is no evidence preserved in this record which tends to show that the city knew or by the exercise of ordinary care could have known of the decayed and dangerous condition -of that part of the billboard which fell and injured the appellant.
*26 I am unable to lend my concurrence to this insistence in full. For tbe sake of argument only, we may concede that there was no evidence tending to show the city had actual notice of said dangerous condition; but in the face of this record it seems to me that it cannot be truthfully said that the record is devoid of all evidence from which a jury might not have reasonably drawn the inference that the city could have known of such condition had it exercised ordinary care in that regard. For instance, it is conceded, or rather not disputed, that the entire billboard, some two hundred feet in length and from ten to twelve feet in height, was a unit, that is, it was all constructed at the same time, of the same materials, and was a continuous structure; that certain portions thereof were decayed, weak and oscillated in the wind; that certain boards were loose and others entirely removed, which, taken in connection with the space between the surface of the earth and the lower ends of the boards, exposed to view the decayed condition of the posts which supported the billboard; that said condition continued for several months prior to the injury complained of, and that the witnesses for the appellant saw and observed those conditions for several months' prior thereto.
But notwithstanding that evidence counsel insist that the evidence further shows that the defective places mentioned were not in that portion of the structure which fell and injured the appellant, but were a hundred or more feet removed therefrom, and, therefore, were no evidence of the fact that the structure was rotten at other places, and especially at the point where the appellant was injured.
In answer to that insistence it may be said: Suppose it be admitted, which the demurrer to the evidence does, that the city knew all of the facts stated and that it had only inspected those defects and had them repaired, but had not looked for others in the same structure composed of like materials, located in the imme *27 ■díate vicinity,'but in a more unfavorable position, because' of being located in tbe basement and on the wall of the basement of a destroyed building, which all know from common observation and experience retains moisture longer than the adjacent elevated ground, and which is highly conducive to the decay of timbers, and especially of yellow pine, the material of which this billboard was constructed, would it be seriously contended that the city had performed its full duty to the traveling public passing along the street in question? I think not; for the reason that the city must have known that the same causes which produced the decay at the places indicated, would also in all probability have caused the same defects to exist in the structure at the point where the appellant was injured, especially when that point was more exposed to the unfavorable elements than were the points where the supposed inspection had been made.
(b) Again, it is insisted that there is no evidence tending to show that the decayed posts were weakened or in any manner contributed to the cause of the fall of the billboard which struck and injured the appellant.
This insistence is wholly untenable, because the evidence shows that the structure fell at that particular point, and it would be idle to say that the billboard would have fallen, even though those posts had not broken, as described in the evidence.
The evidence wholly fails to show that any other portion of the structure broke or gave way in a manner that did or could have caused the billboard to have fallen.
I therefore, as previously stated, concur in the opinion written by Commissioner Roy and that the judgment be reversed and the cause remanded to the circuit court for another trial.
Walker, J., concurs herein.