Brewer v. Town of Lucedale

• Decision Date: 07 October 1940
• Docket Number: 34219
• Citation: 198 So. 42,189 Miss. 374
• Court: Mississippi Supreme Court
• Parties: BREWER v. TOWN OF LUCEDALE

198 So. 42

189 Miss. 374

BREWER v. TOWN OF LUCEDALE

No. 34219

Supreme Court of Mississippi

October 7, 1940

APPEAL from the circuit court of George county, HON. L. C. CORBAN Judge.

Action by Ausband Brewer against the Town of Lucedale for damages for personal injuries. From a judgment in favor of the defendant, the plaintiff appeals. Judgment reversed, and cause remanded.

Reversed and remanded.

Ford &amp Ford, of Pascagoula, for appellant.

A municipality which maintains or permits to remain in the traveled portion of one of its public streets an unguarded hole into which pedestrians or vehicles are liable to fall and be injured, is liable for the damages sustained by any person so injured while lawfully and reasonably using such street, where the municipality knows, or ought to know by the exercise of reasonable care, of the existence of such hole or obstruction, or has itself placed the same there.

Standard Oil Co. v. Decell, 175 Miss. 251; Public Service Corp. v. Watts, 168 Miss. 235; City of Vicksburg v Scott, 168 Miss. 572; Superior Oil Co. v. Richmond, 172 Miss. 407; Solomon v. Continental Baking Co., 172 Miss. 388; 2 Restatement, Torts, Secs. 439, 440; Thomas v. City of Lexington, 168 Miss. 107; Russell v. Williams, 168 Miss. 181; 43 C. J. 1065, Sec. 1840; Jordan v. City of Lexington, 133 Miss. 440; Kirkwood v. City of Pascagoula, 86 Miss. 630; Sec. 512, Code 1930; Miss. Cent. R. R. Co. v. Alexander, 169 Miss. 620.

If the evidence had shown that appellant's leg was broken by the car, of course there would be no liability; on the other hand, if the evidence left the question in doubt as to whether the blow from the car broke it, when he fell in the hole, the question would have been for the jury to determine. However, the proof all around went one way--that Brewer's leg was broken because he simply staggered into this hole, which was there in the street where people and vehicles were supposed to go.

A possessor of land who creates or maintains thereon an excavation or other artificial condition so near an existing highway that he realizes, or should realize, that it involved an unreasonable risk to others accidentally brought into contact therewith while traveling upon the highway, is subject to liability for bodily harm thereby caused to them.

Standard Oil Co. v. Decell, 175 Miss. 251; A. L. I. Restatement, Torts, sec. 368.

If the force which causes the injury is put in operation or motion by what is the negligence of the defendant, and that force or motion is still in progress or operation and has not lost its identity and continuity, as such, when the injury occurs, then the negligence which puts the injurious force in operation is the proximate cause. But when a new and independent force intervenes between the negligence of the defendant and the injury and that new and independent force or power or agency is then and there of sufficient strength or operative force to overcome and substantially supersede the original force or motion, that is to say, if the new and independent force or power is actually an efficient force or power, then the new force becomes the proximate cause, and the original cause, having been superseded, becomes the remote cause.

Public Serv. Corp. v. Watts, 168 Miss. 235.

It is not necessary, in considering the question of foreseeability, adopting a coined word which is now sometimes used, that the wrongdoer could have foreseen the particular injury, or the precise form, or the particular manner in which the injury occurred. It is sufficient that the consequence of the negligence was the natural and probable result thereof, although it might not have been specifically contemplated or anticipated.

Public Serv. Corp. v. Watts, 168 Miss. 235.

The legal duty of a city in reference to its landings is the same as that resting on it in reference to its streets, and that is to use ordinary care to keep them in a reasonably safe condition, and free from unsafe and dangerous conditions, for the use of persons exercising ordinary care and prudence.

City of Vicksburg v. Scott, 168 Miss. 572.

Where an act of negligence is a substantial factor in bringing about an injury, it does not cease to be a legal and proximate cause thereof because of the intervention of a subsequent act of negligence of another which contributed to the injury, if the prior act of negligence is still operating, and the injury inflicted is not different in kind from that which would have resulted from the prior act.

Solomon v. Continental Baking Co., 172 Miss. 388; 2 Restatement, Torts, Secs. 439, 440.

T. H. Byrd and O. F. Moss, both of Lucedale, for appellee.

The operation of the automobiles and the collision and the Thomas car itself was the motivating force that caused appellant's injury. The drain-basin, even if it were negligence on the part of defendant to maintain it, had nothing whatever to do with setting the instrumentality in force that injured appellant. Had it not been for the two automobiles and their collision, appellant never would have been injured, notwithstanding the drain basin. In other words, the two automobiles in their collision were the direct and proximate cause of plaintiff's injury.

The negligence of the defendant complained of must be the proximate cause of the injury.

Hines v. Moore, 124 Miss. 500, 87 So. 1.

"Proximate cause" is that cause which is natural and continuous sequence, unbroken by any efficient intervening cause, produces injury and without which injury would not have occurred.

Railroad Co. v. Wright, 135 Miss. 435, 100 So. 1.

Consecutive wrongs done by independent agents cannot be conjoined to enlarge responsibility of one of them.

Bufkin v. R. R. Co., 161 Miss. 594, 137 So. 517.

Where, except for the intervention of a responsible third party, defendant's negligence would have produced no injury to plaintiff, and the negligence of defendant had no connection with the wrongful act of such intervening third party, defendant is not liable to plaintiff for such injury.

R. R. Co. v. Daniels, 135 Miss. 33, 99 So. 434; Bufkin v. R. R. Co., 161 Miss. 594, 137 So. 517.

A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent act or defective condition sets into operation the circumstances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause.

Furlong v. Roberts, 164 A.D. 458, 150 N.Y.Supp. 166; Anderson v. Bransford, 39 Utah 256, 116 P. 1023; 45 C. J., pp. 929-930, Sec. 490, and p. 931; Myer v. King, 72 Miss. 1, 16 So. 245.

Concurrent causes are causes acting contemporaneously and which together cause the injury, which injury would not have resulted in the absence of either. But where the negligence of one consists in a condition merely which is rendered injurious by the subsequent negligence of a third person, the acts of the two persons are not concurrent. So, if two distinct causes are successive and unrelated in operation, they cannot be concurrent; one of them must be the proximate and the other the remote cause, and this applies where one of the unrelated causes is extraordinary and unexpected.

45 C. J. 925, sec. 488; Stone v. R. R. Co., 171 Mass. 536, 51 N.E. 1, 41 L. R. A. 794; 2 Restatement, Torts, sec. 434.

The liability of a municipal corporation for injuries from defects or obstructions in its streets is for negligence, and for negligence only; it is not an insurer of the safety of travelers, and is not liable for consequences arising from unusual or extraordinary circumstances which could not have been foreseen.

McComb v. Hayman, 124 Miss. 525, 87 So. 11; Gallagher v. Tipton, 133 Mo.App. 557, 113 S.W. 674; 43 C. J., p. 998, sec. 1785, p. 1006, sec. 1790, p. 1063, sec. 1839, p. 1068, sec. 1842 and footnote; Alexander v. New Castle, 115 Ind. 51, 17 N.E. 200; Milostan v. Chicago, 148 Ill.App. 540; Gulfport & Miss. Coast Traction Co. v. Manuel, 123 Miss. 266, 85 So. 308.

OPINION

McGowen, J.

Ausband Brewer, the appellant, sued the Town of Lucedale for damages for personal injuries sustained by him. The case was tried, all of the evidence offered by the plaintiff being heard; and at the conclusion thereof, the appellee, the Town of Lucedale, made a motion to exclude the evidence and requested a directed verdict in its favor. This motion was sustained, the peremptory instruction was given, and the jury returned a verdict in accordance therewith for the appellee, the Town of Lucedale; and appeal is prosecuted here. It is assigned as error that the court below erred in directing a verdict for the appellee.

The appellant sustained his injuries at or near the intersection of two streets, which were being maintained by the municipality. In the Town of Lucedale, Magnolia Street runs North and South and intersects Ratliff Street, which runs East and West. Immediately before the accident, the appellant was employed as a W. P. A. worker, with four or five others to work on the street. The streets were graveled, and these laborers were working with shovels placing gravel in holes in the street at the intersection. Brewer, together with these men, saw a car being driven by Mrs. W. W. Thomas, traveling East on Ratliff Street and approaching this intersection. When the...