Byrnes v. City of Jackson

Decision Date16 November 1925
Docket Number25027
Citation105 So. 861,140 Miss. 656
CourtMississippi Supreme Court
PartiesBYRNES v. CITY OF JACKSON. [*]

Division B

1. MUNICIPAL CORPORATIONS. City maintaining zoo in park responsible for negligence of agents causing injury by wild animals.

A city maintaining a zoo in a public park, keeping therein wild and dangerous animals, is responsible in damages for the negligence of its officers and agents by which persons visiting the park are injured by such wild animals.

2 NEGLIGFNCE. Contributory negligence not complete defense under statute.

Where in such case the city is negligent with reference to such animals so inflicting injuries, the fact that the person injured was also guilty of negligence contributing to the injury will not defeat the right of action under section 502 Hemingway's Code (Laws of 1910, chapter 135), providing for the diminishing of damages in such cases in proportion to the negligence of the plaintiff and the defendant.

3 NEGLIGENCE. Contributory negligence for jury.

Under Hemingway's Code, section 503 (Laws 1910, chapter 135) questions of negligence and contributory negligence are for jury.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Action by Mrs. R. A. Byrnes against the city of Jackson. From a judgment dismissing plaintiff's action, after sustaining defendant's demurrer to the declaration, plaintiff appeals. Reversed and remanded for new trial.

Judgment reversed, and cause remanded.

Powell, Harper & Jiggitts, for appellant.

I. It is a recognized and general rule of law that those who keep animals ferae naturae must keep them at their peril. Phillips v. Lou Garmer, 106 Miss. 828; Ammons v. Kellogg, 102 So. 562.

II. The maintenance and operation of a park is a private corporate function, a ministerial duty. And for negligence in the maintenance and operation of its park, a city is liable. Norberg v. Hagna, 195 N.W. 438; Kokomo v. Loy, 185 Ind. 18; Bloom v. Newark, 3 Ohio N. P. (N. S.) 480; Capp v. St. Louis, 251 Mo. 345; Denver v. Spencer, 32 Colo. 270; Indianapolis v. Baker, 72 Ind.App 323; Ehrgott v. mayor, etc., 96 N.Y. 264; Webber v. Harrisburg, 216 pa. 117, 64 At. 905; Berthold v. Philadelphia, 154 Pa. 109, 26 A. 304; Andarko v. Swain, 42 Okla. 741, 142 P. 1104; Ft. Collins v. Roten, 72 Colo. 182; Roulier v. Magog, Rap. Jud. Quebec, 37 C. S. 246; Canon City v. Cox, 55 Colo. 264 N.E. 330; Silverman v. New York, 115 N.Y.S. 59; Van Dyke v. Utica, 196 N.Y.S. 277; Keunzel v. St. Louis, 278 Mo. 277, 212 S.W. 876; Boise Development Co. v. Boise City, 30 Idaho 675; Abbott on "Municipal Corporations," page 2255.

III. The law in Mississippi is that a municipal corporation is liable for negligence in the maintenance and operation of its sewerage and drainage system. Fewell v. Meridian, 90 Miss. 380, 43 So. 438; Thompson v. Winona, 96 Miss. 591; Mary Semple v. Vicksburg, 62 Miss. 637; Vicksburg v. Richardson, 90 Miss. 1.

IV. The supreme court of Mississippi has held that a municipality is liable for negligence in maintaining a hog pound. Crawford v. D'Lo, 119 Miss. 28, 80 So. 377.

V. It is settled law in this state that a municipality is liable for negligence in the maintenance and operation of its streets and highways. Whitfield v. City of Meridian, 66 Miss. 570; City of Vicksburg v. Walter McLain, 67 Miss. 4; Nesbitt v. City of Greenville, 69 Miss. 22; Carver v. City of Jackson, 82 Miss. 583; City of Pascagoula v. Kirkwood, 86 Miss. 630; Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329; Mrs. Vina Harding et al. v. City of Corinth, 105 Miss. 99, 62 So. 6; Saxon v. Town of Houlka, 107 Miss. 161, 65 So. 124; Higgenbottom v. Village of Burnsville, 113 Miss. 219; Harralson v. City of Vicksburg, 101 So. 713; Atkinson v. Decatur, 131 Miss. 707, 95 So. 689.

VI. In giving to a municipality full jurisdiction in the matter of streets, etc., our legislature has seen fit to include parks along with sidewalks and sewers, as though they were matters of a similar nature. Hemingway's Code, section 5825.

VII. Mississippi should follow the New York rule as to the liability of a city for its negligence in the maintenance and operation of its parks. Kokomo v. Loy, 185 Ind. 18; Ehrgott v. Mayor, etc., 96 N.Y. 264; Norberg v. Hagna, 195 N.W. 438; Capp v. St. Louis, 251 Mo. 345.

VIII. To hold that a city is not liable for negligence in the maintenance and operation of its parks would be to destroy the usefulness of the parks. It would defeat their very purpose. Capp v. St. Louis, 251 Mo. 345.

Green, Green & Potter, for appellee.

We admit at the outset that a city's acts are divided into two classes: (1) Those governmental in their nature, for which the city is not liable; (2) Those where the city acts in a private corporate or proprietary capacity, for which the city is liable for the negligent acts of its servants under the doctrine of respondeat superior.

There is a wide diversity of opinion among the American courts as to within which class the maintenance of a park falls. But we submit that those courts holding that a city is acting within its governmental capacity, as distinguished from its private corporate capacity, are supported not only by the numerical weight of authority, but also by the best reasoning.

Aside from the care and maintenance of its streets, which at least one court of last resort has denominated as an "illogical exception," the rule seems to be firmly established that if the city, as a corporation, is deriving any pecuniary gain or special advantage from any particular activity, that it is acting within its private corporate function, for which it is liable for the negligent acts of its servants; but where it is performing a public duty, or exercising a power from which the city, as such, derives no gain or advantage; but the act, duty or power is exercised for and on behalf of the general public, then the city is acting within its governmental function, for which it is not liable. 19 R. C. L. 1111.

All of the textbooks recognize that there is an irreconcilable conflict of authority as to what is or is not a governmental as contra-distinguished from a private function of a municipality. Dillon on Municipal Corporations (5th Ed.) par. 2890; Louisville Park Commissioners v. Prinz, 127 Ky. 480.

Clarke v. Walthall, 128 Mass. 567, held that a person could not recover damages for injuries sustained on a path in a public commons, even though under the statutes of Massachusetts a party could have recovered damages for an injury sustained in the public highway, caused by the negligence of the municipal authorities.

Steele v. Boston, 128 Mass. 583, held that the city of Boston was not liable for injuries caused a person on the Boston commons by coming into collision with a sled on one of the paths upon which the city had permitted men and boys to coast in the winter season. In Blair v. Granger, 24 R. I. 17, where the plaintiff brought an action against the city to recover damages for personal injuries sustained while driving through a public park of the city, his horse being frightened by the negligent use and operation of a steam roller which was being used to construct or repair one of the drives, the court held that the city in the care and maintenance of its park system was acting in a governmental capacity, for which it was not liable. See to the same effect: Russell v. Tacoma, 8 Wash. 156, holding that in the care, maintenance and control of the park, the city exercised a power conferred upon it for the public good, and not for profit or special corporate advantage. Burnstein v. Milwaukee, 158 Wis. 576, 149 N.W. 382, L. R. A. 1915 C, 435.

City maintaining a playground for children is not liable, under the theory that it is maintaining and performing a public function. Bisbing v. Asbury, 78 At. 198. In Harper v. Topeka, 139 P. 1018, 51 L. R. A. (N. S.) 1032, based on a boy's drowning while skating on a pond, maintenance of a park is a governmental function. The city as a corporation derives no benefits therefrom; but the park is maintained for the benefit of the public without regard to residence. Nashville v. Burns, 131 Tenn. 281, 174 S.W. 1111, municipal corporation held not liable for injuries to child by other children's negligent use of a swing on public playground. Ackeret v. Minneapolis, 129 Minn. 190, 151 N.W. 976, in establishing, caring for and maintaining public parks, municipalities act in their governmental and not in their proprietary capacity. See, also, Lincoln v. Boston, 3 L. R. A. 257; Pope v. New Haven, 99 A. 51, L. R. A. 1917B, 1239; Kerr v. Brookline, 208 Mass. 190, 94 N.E. 257, 34 L. R. A. (N. S.) 464.

The city was in the performance of a governmental function when it established and maintained the zoo mentioned in plaintiff's declaration, and for that reason it could not be in any way held liable for the negligent acts of the servants mentioned therein. In Guizzi v. New York Zoological Society, 182 N.Y. 258, Zoological Society was held not liable for an injury caused by a bear.

II. The declaration shows on its face that the negligence of the plaintiff was the sole proximate cause of the injury complained of. The keeper of a wild animal is ordinarily an insurer against its harming any one. In other words, the owner of an animal ferae naturae is bound to keep the same caged at all times. This is a matter of common knowledge and, as such, is conclusively presumed to be known to all persons of mature age; and, therefore, it is conclusively presumed to have been known by the plaintiff. Where a bear is chained to a stake, this is in and of itself notice that it is a ferocious animal. Beyond a radius of possibly ten feet from this stake the plaintiff was in a position of absolute...

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