Mackey v. The City of Vicksburg

Decision Date16 May 1887
Citation2 So. 178,64 Miss. 777
CourtMississippi Supreme Court
PartiesR. E. LEE MACKEY, BY NEXT FRIEND, v. THE CITY OF VICKSBURG

April 1887

APPEAL from the Circuit Court of Warren County HON. RALPH NORTH Judge.

The case is stated in the opinion of the court.

Judgment reversed and cause remanded.

J. T Coleman, for the appellant.

It is not necessary, in order to charge the city with responsibility, that its negligence should be the efficient or acting cause of the injury; if the injury would not have occurred but for such negligence that is enough. In grading the hill the defendant carelessly, negligently, and recklessly deposited the earth on the adjoining lot of Mackey, by which alone his child was enabled to escape, and was invited to escape, from the inclosure where it was absolutely safe, and thus to incur the great, if not irresistible, temptation to wander and satisfy its infant curiosity, unconscious of its imminent peril. The city not only provided this way for the child to escape from the yard, but connected it with a deadly trap in the shape of a narrow and dangerous and unguarded pathway leading up and around the hill. This is something more than non-feasance, it is positive action--the result, consequence, or outworking of the want of such care as should have been exercised by the defendant. Hayes v. Michigan Ry. Co., 4 S. C. Rep. 373; Milwaukee & St. Paul Ry. Co. v. Kelly, 94 U.S. 469.

The evidence of the circumstances, showing negligence on the part of the defendant, which may have been the legal cause of the injury to the plaintiff, according to the rule laid down and established in Railroad Co. v. Stout, 17 Wallace 657, and Randall v. B. & O. Ry. Co., 109 U.S. 478, should have been submitted to the jury.

The question of contributory negligence, even if it had been contended for by defendant, does not arise in the case. The single question, therefore, for present decision is whether the allegations of the declaration are sufficient to show a cause of action which should justify the court in submitting the facts to a jury. We respectfully refer to the following decisions: Atlanta v. Wilson, 59 Ga. 544; Wilson v. Atlanta, 60 Ib. 473; Chicago v. Heising, 83 Ill. 204; Chicago v. Mayor, 18 Ib. 349; Neblet v. Nashville, 12 Heisk. 684; 2 Dillon on Municipal Corporations 1018.

Catchings & Dabney, on the same side.

The error of the circuit court in sustaining defendant's demurrer and dismissing the suit is patent.

If all that is alleged in the declaration is true, it is impossible for the city to escape liability.

Municipal corporations are held to the same care and are subject to the same liability for negligence as individuals. Semple v. Mayor and Aldermen of Vicksburg, 62 Miss. 63; Dillon on Municipal Corporations (3d ed.), § 968; Perry v. City of Worcester, 66 Am. Dec., notes, 436 and 438; Wallace v. City of Muscatine, 61 Am. Dec. 131.

This latter case is thought to be especially in point.

We cite as authorities on the case generally, and involving the law with reference to injuries suffered by children by negligence of others, the following: Thompson on Negligence 1129, 1140, §§ 1181, 1184, and 1185 et seq.; see, also, Ib. 304, 305, and 306.

The rule in the United States, 1194, 1195, and here the "R. R. Turn- table Cases" are cited, which are not so strong as this case.

It will be observed that the courts take judicial notice of the natural instincts of children, and require the public and all persons to use reasonable or ordinary care in what they do to prevent injury to children who are indulging their natural instincts. Thompson on Negligence 1195.

Children, being without discretion, are treated much as domestic animals in this respect, or, rather, are held to little if any more care for their own protection, and therefore cannot be said to be guilty of contributory negligence.

In a recent case in Arkansas it was held that where a pit under a cotton gin near a highway was dug, leaving cotton seed scattered about it, the owner of a cow which fell in the pit could recover. Jones v. Nichols, 55 Am. Rep. 575; see, also, Crogan v. Schiele, Ib. 88; Schmidt v. Kansas City Dist. Co. (S. C. Mo., Nov. 15, 1886); 2 Cent. Law Jour., § 574, Dec. 10, 1886, 573, 574, and 559; City of Chicago v. Hesing, 25 Am. Rep. 378.

The case of Keffe v. Milw. & St. P. R. R. Co., 18 Am. Rep. 393.

Patrick Henry, for the appellee.

We hold that the whole and entire damage done was caused by the plaintiff's own wrong and negligence. Cooley on Torts 605, 606, 660; Henessee v. City, 54 Miss. 391.

As to the child being of tender age, such a one who climbed, and walked, and strayed from the parents' premises a distance of a hundred yards, we claim was sui juris. Down v. New York Railroad, 47 N.Y. 83.

There is no averment that the parents of the child used the care and diligence requisite to keep the child from mischief and harm. 2 Thompson on Negligence 1184, §§ 33 and 34.

The declaration does not aver that the city owned the hill in which the excavation was being made, and does not show that said excavation was left there for a longer period than was necessary. 1 Thompson on Negligence 303, 304, and 305.

The city of Vicksburg is not liable for trespass and damages done by the servant of the city unless some specified duty is ordered to be performed, such as ministerial duties. Semple v. City of Vicksburg, 62 Miss.; Walcot v. Swampscott, 1 Allen 101; Condict v. May et al., 16 Vroom, N. J.

When a child comes upon defendant's premises some distance from the highway, as in this case, and falls over an embankment, there is no liability on the defendant. Hargraves v. Dewer, 25 Mich. 1; Gillespie v. McGown, 100 Pa. St. 144.

OPINION

COOPER, C. J.

This is an action brought by an infant of six years to recover from the city of Vicksburg damages for an injury received by him in falling over the precipitous side of a hill near his residence in said city. The declaration states that the city, for the purpose of procuring earth, with which it was then making necessary repairs on its streets, "did carelessly and unskillfully dig down, grade, excavate, and remove portions of a certain hill or elevation of land in said city known as Sky Parlor Hill, contiguous to the plaintiff's residence, and so threw the dirt, earth, and rubbish from said hill upon the rear side of said lot or yard of plaintiff's residence as to enable and invite plaintiff, being a minor of tender years, to wit, of the age of six years, to escape from the inclosure around and about said yard and residence; and defendant otherwise dug and graded said hill so as to make a narrow and dangerous pathway up and along said hill leading from and connected with said place of escape to the top of said hill, and so wrongfully and carelessly and negligently permitted the same to be unguarded, unprotected, unsafe, and dangerous while said defendant was engaged in its work, and in such condition as to enable and invite said plaintiff to escape from said yard and along said pathway up the side of said hill; and plaintiff avers that on the (lay and in the manner aforesaid, by passing over the said place of escape, he being such minor of tender years, escaped from the yard and inclosure of his residence and strayed and wandered up and along said pathway to a high point thereon, from which point he fell a great distance, to wit, a distance of seventy-five feet, whereby he was greatly injured, etc., and sustained damage to the amount of fifteen thousand dollars, for which he sues."

The defendant demurred and assigned for causes:

1. That the declaration shows no cause of action.

2. The declaration shows the plaintiff was an intruder.

3. No duty incumbent on the defendant was violated.

4. The declaration...

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