Gulfport & Mississipi Coast Traction Co. v. Manuel

• Decision Date: 01 March 1920
• Docket Number: 21211
• Citation: 123 Miss. 266,85 So. 308
• Parties: GULFPORT & MISSISSIPI COAST TRACTION CO. ET AL. v. MANUEL ET AL
• Court: Mississippi Supreme Court

85 So. 308

123 Miss. 266

GULFPORT & MISSISSIPI COAST TRACTION CO. ET AL. v. MANUEL ET AL

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 &amp 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 testimony of Mr. Gibson, for the plaintiff: 'A person driving prudently and with ordinary care should have passed the place without accident. A fireman is not exempt from the duty to exercise ordinary care and prudence in driving to a fire.'"

We submit that the comparative negligence statute does not apply to actions against municipalities based on injuries received from the use of its streets but that should your Honors hold otherwise, we submit that the facts of this case show no negligence on the part of the city.

As late as 1915 this court in considering the case of the city of Meridian v. Crook, 109 Miss. 700, 69 So. 182 decided quoting from said case: "In the case of City of Vicksburg v. Hennessy, 54 Miss. 391, 28 Am. Rep. 354, our court announces the foundation principle running through all the cases of this character. Judge CHALMERS, for the court, well says: "Municipal corporations are not liable for every accident that may happen in their streets. They are not insurers of the safety of those who use them. Their duty is discharged when they have made them reasonably safe for people of ordinary prudence."

The same principle is announced and recognized in the case of Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452, 30 Am. St. Rep. 251, in the statement of the court that: "Ordinary care over its streets is the measure of diligence imposed upon municipal corporations, and they are not insurers against injury to persons using the public streets." To the same effect is the statement on page 1006, 2 Dillon on Municipal Corporations.

In the case of Waggener v. Town of Point Pleasant, 42 W.Va. 798, 26 S.E. 352, the plaintiff in his declaration alleged that the town--"wrongfully and injuriously allowed and permitted said sidewalk to become and remain in bad condition, order, and repair, within the corporate limits of said town, in this: That the said defendant permitted a great number of bricks of which said sidewalk was built to be torn up and carried away, and that other of said bricks were in the ground, with their tops projecting upward above the surrounding surface, and there was also a number of loose bricks partially imbedded in the ground, all of which made a very rough, uneven, and dangerous surface on said sidewalk, and allowed said sidewalk to be and remain uneven, sideling, muddy, rocky and slippery," etc. The court sustained a demurrer to the declaration. Morrison v. City of Philadelphia, 195 Pa. 372, 45 A. 1068; Hamilton v. City of Buffalo, 173 N.Y. 72, 65 N.E. 944; Butler v. Village of Oxford, 186 N.Y. 444, 79 N.E. 712; Stratton v. City of New York, 190 N.Y. 294, 83 N.E. 40; City of Indianapolis v. Cook, 99 Ind. 10.

Counsel for appellee rely upon the cases of City of Natchez v. Lewis, 90 Miss. 310, 43 So. 471, and Birdsong v. Mendanhall, 97 Miss. 544, 52 So. 795. In the Lewis case there was a hole in the sidewalk, twelve inches or more in length, at least eight inches in depth, and slanting downward and upward toward the street, and it was shown, that this hole had remained there so long that the city had due notice thereof. In the Birdsong case plaintiff's foot was caught in a hole and he was tripped, and fell and sustained injuries. The exact character of the defect complained of is not disclosed by the reported case. The principal defense was to the effect that plaintiff had knowledge of the condition, and was thereby debarred from any recovery, and the opinion of the court deals primarily with this point. The point was not raised in that case that the defect complained of was not an unreasonable situation, and we gather from the briefs of counsel that the defect was indeed dangerous. Leslie v. City of Grand Rapids, 78 N.W. 885, 120 Mich. 28.

It is sufficient if the streets, including sidewalks and bridges thereon, are in a reasonably safe condition for travel in the ordinary manner by night as well as by day and whether they are so or not is to be determined by the particular circumstances of each case. Wilson v. City of Wheeling, 19 W.Va. 323, 42 Am. Rep. 780; Van Pelt v. Town of Clarksburg, 42 W.Va. 218, 42 S.E. 878.

A bicycle rider is not entitled to recover for injuries sustained by reason of a defect in the street, where the defect would not have caused injury to an ordinary rider. Fox v. Clark, 357A. 305, 25 R. I. 515, 65 L. R. A. 234; Town of Union v. Heflin, 61 So. 652.

We submit that to apply the comparative negligence statute to personal injury suits arising from the...