85 So. 308 (Miss. 1920), 21211, Gulfport & Mississipi Coast Traction Co. v. Manuel

Docket Nº:21211
Citation:85 So. 308, 123 Miss. 266
Opinion Judge:ETHRIDGE, J.
Attorney:White & Ford, for appellant. Rushing & Guice, for appellant. Mize & Mize, for appellee.
Case Date:March 01, 1920
Court:Supreme Court of Mississippi

Page 308

85 So. 308 (Miss. 1920)

123 Miss. 266




No. 21211

Supreme Court of Mississippi

March 1, 1920

APPEAL from the circuit court of Harrison County, HON. D. M. GRAHAM, Judge.

Action by Mrs. Eugenia Manuel and Flores Manuel, a minor, against the City of Biloxi and the Gulfport & Mississippi Coast Traction Company. Judgment for plaintiffs, and defendants appeal. Reversed, and judgment rendered for defendants.

Judgment reversed.

White & Ford, for appellant.

While the question as to what constituted negligence is one for the jury whenever there are facts shown upon which negligence can reasonably be predicated, where the undisputed testimony shows a state of facts such that reasonable or careful man would believe that there was no possible danger therefrom, a peremptory instruction should be given, and in such case this court does not, hesitate to reverse and dismiss. Gin Co. v. Moore, 103 Miss. 447; Railroad Company v. Frazier, 104 Mass. 379; A. & V. Ry. Co. v. White, 106 Miss. 141; Chicago Title & Trust Co. v. Standard Fashion Co., 106 Ill.App. 135; Terminal Ass'n. v. Larkins, 112 Mo.App. 366; Union Pac. Ry. Co. v. Leppard, 47 P. 625, 5 Kan.App. 484; Chicago B. & Q. Ry. Co. v. Schwanenfeldt, 105 N.W. 1101, 75 Neb. 80.

"Where there is no controversy as to the facts, the question of negligence is for the court; otherwise, it is for the jury." Thomas v. Wheeling Electrical Co., 46 S.E. 217, 54 W.Va. 395. This pole was set in a grass plot three feet from the traveled street and in the place selected by the city authorities as a safe and proper place for it. It was absolutely safe to all persons using the slightest care in traveling the street, and for all persons using the street in a lawful manner.

Appellant could not foresee that some reckless rider of a motorcycle, driving his machine at a reckless rate of speed in violation of law, would lose control of his machine at this particular place and leaving the traveled street run against this pole. The facts are undisputed and there is no act of appellant from which a jury by the widest stretch of imagination could infer negligence and we therefore confidently insist that there was no question for the jury to pass upon and that the judgment should be set aside, the cause reversed and a judgment entered here for defendants.

There is another established fact which is fatal to appellee's cause. The deceased was killed while violating the laws of the state and the ordinances of the City of Biloxi and his death was the direct result of his unlawful act. That this is true was shown by the undisputed testimony of witnesses and by the conditions and circumstances surrounding the accident itself. Broschart v. Tuttle, 11 L. R. A. 33; W. U. Tel. Co. v. McLaurin, L. R. A. 1915C, 389; Railroad Company v. Messina, 111 Miss. 884.

No case has been brought to our attention and upon careful investigation we have found none in which a plaintiff, whose violation of law contributes directly or proximately to cause him an injury, has been permitted to recover for it, and decisions are numerous to the contrary. Newcome v. Boston, Protective Department, 4 Am. St. Rep. 358 (and authorities cited on this page); Boswart v. Inhabitants of Swaney, 41 Am. Dec. 341; Heland v. City of Lowell, 81 Am. Dec. 670; Knickerbocker, Ice Co. v. Leyda, 128 Ill.App. 66; Dudley v. N. H. Street Ry. Co., 89 N.E. 25; Wyatts v. Traction Company, 57 So. 471; So. Ry. Company v. Rice, 78 S.E. 592; Haumesser v. Central Brewing Company, 158 Ill.App. 648. The law does not place upon this appellant the duty of placing its poles in the street in such manner as to make them safe for speed maniacs and violators of the law, nor does the law penalize one for the unlawful act of another.

We therefore submit that the record shows two perfect defense to this suit; first, the proof conclusively shows that appellant's pole was set in a perfectly safe place, and second; that the death of Manuel was the direct result of his own unlawful act.

Rushing & Guice, for appellant.

The pole in question was not in a dangerous place for any person in the exercise of even ordinary care for his own safety and certainly municipal corporations do not owe a higher duty to those persons who recklessly and without the slightest regard for their own safety use the streets for reckless driving. Such reckless riders not only endanger their own lives but those of all others of cities whose business requires them to use the streets.

In the case of Walker v. Vicksburg, 71 Miss. 899, 15 So. 132, the court through CAMPBELL, C. J., said: "Assuming the law to be that Walker did not sustain such relation to the city, by reason of his employment as a fireman, as to preclude him from recovering from any injury sustained because of a defect in the street, under circumstances which would entitle any traveler to recover, it appears too plain for dispute that his injury resulted from want of due care on his part, and that on this ground he should not be allowed to recover. The extent of the obligation of the city is to keep the streets in a condition reasonably safe for a general use, and it is not required to have them so as to insure the safety of a reckless driver, whether a fireman or another. According to the...

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