Mississippi Power Co. v. Sellers

• Decision Date: 30 March 1931
• Docket Number: 29080
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI POWER CO. v. SELLERS

133 So. 594

160 Miss. 512

MISSISSIPPI POWER CO. v. SELLERS

No. 29080

Supreme Court of Mississippi

March 30, 1931

Division A

1 HIGHWAYS.

County need not have highways in condition insuring safety of reckless drivers, but need only keep highways reasonably safe for general use.

2 HIGHWAYS.

Vehicle user is not entitled to entire public highway from property line to property line.

3 HIGHWAYS.

Statute granting power to place posts 'along and across" public highways authorized power company to construct its poles and lines in and upon public highway (Laws 1926, chapter 233; Code 1930, section 1506).

4. HIGHWAYS.

Statute granting right to construct pipe lines along highways, but not in manner to be dangerous to persons or property, did not apply where power company placed poles along highway and truck struck pole (Code 1930, section 1508).

5. EVIDENCE.

Presumption is persons have acted lawfully.

6. HIGHWAYS.

Power company held not liable where trailer on truck in which plaintiff rode, as result of reckless driving, struck pole within right of way but eight feet from traveled road (Code 1930, section 1506).

HON. W. J. PACK, Judge.

APPEAL from district court of Jones county, First district,HON. W. J. PACK, Judge.

Action by W. G. Sellers, Jr., against the Mississippi Power Company and another. From a judgment for plaintiff, defendant named appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

Baskin, Wilbourn & Miller, of Meridian, and Deavours & Hilbun, of Laurel, for appellant.

While the street must be used for public purposes, it is not necessary for the entire space to be kept in condition for travel. The city may lawfully use the street for the construction of sewers, for drainage, to lay gas or waterpipes, or to erect poles or string wires for electric lights, or to construct a wharf at the terminus of the street, or convert a promenade into wharves or set apart for a boulevard a portion of a street not devoted to business purposes.

28 Cyc. 853; Gulfport & Miss. Traction Co. v. Manuel, 123 Miss. 266, 85 So. 308.

It is permissible for the city to set apart a portion of the street for the erection of poles to support light, telephone and trolley wires. The extent of the obligation of the city in working its streets is to keep them reasonably safe for general use. It is not required to have them in such condition as to insure the safety of reckless drivers.

Walker v. Vicksburg, 71 Miss. 899, 15 So. 132; Butler v. Oxford, 69 Miss. 618, 13 So. 626; Nesbitt v. Greenville, 69 Miss. 22, 10 So. 452, 30 Am. St. Rep. 521; McComb City v. Hayman, 124 Miss. 525, 87 So. 11.

A user of vehicles is not entitled to the entire street from property line to property line. The street not only serves the needs of the traveling public, but serves also the purpose of furnishing the public the conveniences above set out.

Gulfport Miss. Traction Co. v. Manuel, 123 Miss. 266, 85 So. 308.

The maintenance of a parkway or its incidents, including a pole owned and maintained by a utility corporation, inside the parkway curbing, which, though contiguous to, are entirely and wholly outside the travelled and improved roadway of a boulevard, set aside and designated by the city for ordinary vehicular travel and use by the public, is not actionable negligence so as to permit recovery against the city for injuries sustained by the driver of an automobile, who, after dark on a rainy evening, drives off the traveled and improved roadway over the six or eight inch protecting curb which marks its boundary, and collides with the pole.

Clinkenbeard v. St. Joseph, 10 S.W.2d 54, 61 A. L. R. 242; 13 R. C. L. section 170, page 199.

Chapter 179, Laws of 1924, as amended by chapter 233 of the Laws of 1926, of the State of Mississippi, section 2 of which latter statute is section 1506 of the Code of 1930 of Mississippi, does not authorize the appellant to erect poles "within the highway." The word "along" is used in the sense of "upon."

Town of Nappanee v. Ruckman, 34 N.E. 609, 7 Ind.App. 631; Ryan v. Preston, 66 N.Y.S. 162.

We cannot think that the city's council, by the change of phraseology, intended to authorize the defendant to construct its road by the side of the alley on private property over which the city had no control.

Heath v. Des Moines, 15 N.W. 573, 61 Iowa 11.

Appellant's right to erect the pole is clearly referable to Laws of 1926, chapter 233. Such right under the Laws of 1926, chapter 233, sections 1505 and 1506 of Code of 1930 of Mississippi are not diminished, even though appellant also had the right under chapter 291, Laws 1922, section 1508 of Code of 1930.

No presumption against the legality of the erection of the pole can be indulged under the law. The presumption is that persons have acted lawfully and not unlawfully.

Estes v. Memphis & Charleston R. R., 152 Miss. 814, 119 So. 199.

Currie & Currie, of Hattiesburg, for appellee.

At common law the right of the public to the use of the public highways extends over the entire highway.

People v. Cunningham (1 Denio. 524), 43 Am. Dec. 709.

The statutes of this state prohibit the obstruction of the public highways of this state and make it criminal to do so.

Sections 6315, 6316, 6317, 6476, Miss. Code 1930.

At common law any act or obstruction which endangered, incommoded, or impeded the lawful use of a highway by the public, except such as arises by necessity from unloading wagons, putting up buildings and things of that sort was a common-law nuisance.

4 Steph. Com. 294; 1 Hawk Pl. Cr. c. 76; People v. Cunningham, 1 Denio. (N. Y.) 524, 43 Am. Dec. 709; Clark v. Fry, 8 Ohio St. 358, 72 Am. Dec. 590; Com v. Dicken, 145 Pa. 453, 22 A. 1043; City & County of San Francisco v. Buckman, 111 Cal. 25, 43 P. 396; Williams v. Hardin, 46 Ill.App. 76.

And at common law an action on the case for damages by anyone specially injured thereby could be maintained.

Colitt, 56a; Hughes v. Helser, 1 Binn. (Pa.) 463, 2 Am. Dec. 459; Pierce v. Dart, 7 Cow. (N. Y.) 609; Stetson v. Faxon, 19 Pick. (Mass.) 147, 31 Am. Dec. 123; Milarkey v. Foster, 6 Ore. 378, 25 Am. Rep. 531; Clark v. Lake, 1 Scam. (Ill.) 229; Osborn v. Ferry Co., 53 Barb. (N. Y.) 629; Martin v. Bliss, 5 Blackf. (Ind.) 35, 32 Am. Dec. 52.

The only authority which the appellant had for erecting the post or pole in question in the public highway in question must be found in chapter 233, page 349, Laws of Mississippi, 1926. The word "along" as used in said statue did not authoirze and was not intended to authorize the placing of this post or pole in said highway in the manner and position in which the same was placed, and the word "across" as used in said statue did not and was not intended to authorize the palcing of this post or pole in said highway in the manner and position in which the same was placed.

1 Words and Phrases, pages 351-2-3-4-5; 1 Words and Phrases (2 Ed.), page 195; Zimmerman v. American Tele. & Tele. Co., 15 S.E. 243, 344, 71 S.C. 528, 110 Am. St. Rep. 589; Williams v. Board of Com'rs of Routt County, 84 P. 1109, 37 Colo. 55; City of Vincennes v. Spees, 74 N.E. 277, 279, 35 Ind.App. 389; Id. 72 N.E. 531, 532; Pratt v. Atlantic & St. L. R. Co., 42 Me. 579, 585.

The record in this case fails to show that the appellant obtained any authority from the board of superviors for erecting its poles along the highway. It was imperative before it did so to get the authority of the board of supervisors of the county. Without this the erection of its poles in the highway was in violation of the statutes prohibiting the obstruction of the highways.

Section 8335 of Hemingway's Code 1927.

Where statute authorized telephone companies to erect poles along highways "provided they do so in such a manner as not to incommode the public," it contemplated the possibility of the use of any part of the highway if circumstances required and not simply the graded or regularly traveled part thereof; which statute is more favorable to appellant than our Mississippi statute.

South Texas Tel. Co. v. Tabb, 52 Tex. Civ. App. 213.

Argued orally by R. E. Wilbourn, for appellant, and by D. T. Currie and N. T. Currie, for appellee.

OPINION

McGowen, J.

Appellee, Sellers, filed a declaration against appellant, Mississippi Power Company, and Edgar Parker, jointly, for damages on account of personal injuries received in a truck wreck, and recovered a judgment for five thousand dollars against the appellant, the Mississippi Power Company, and Parker.

It was alleged that the truck in which the appellee was riding was being driven from his home along the public highway known as the Albertson and Estabuchie Road; and that said truck was in the use, possession, and control of Edgar Parker and operated by him; that Parker negligently and improperly, and without due regard for the safety of his guest, drove the truck at a speed that was improper, because of the condition of the said road and of the fact that the Mississippi Power Company had erected its poles within the right of way of said road and had thereby placed a dangerous obstacle and obstruction therein, which endangered the lives and limbs of persons driving motor vehicles upon the said road and riding in motor vehicles on and over said road; that Parker drove at such speed that he could not control the motortruck, and it was alleged that there was a two-wheeled trailer attached or drawn by the truck, and that the trailer would lurch or swing to the outer edge of the highway because of the speed of the truck and the condition of the road and the curves therein, and there was danger of said trailer and truck striking any object on the edge of said highway; and that because of said facts the truck was wrecked and...