City of Hattiesburg v. Reynolds

• Decision Date: 31 January 1921
• Docket Number: 21504
• Court: Mississippi Supreme Court
• Parties: CITY OF HATTIESBURG v. REYNOLDS

86 So. 853

124 Miss. 352

CITY OF HATTIESBURG v. REYNOLDS

No. 21504

Supreme Court of Mississippi

January 31, 1921

October 1920

1. JUDGMENT. Where variance between declaration and proof material, plaintiff cannot recover without amending. Where there is a material variance between the declaration and the proof, the plaintiff cannot recover without amending his declaration to conform to the proof.

2. MUNICIPAL CORPORATIONS. Municipality not liable for injuries from defect in street, in absence of notice.

A municipality is not liable in damages sustained by a traveler on its streets because of a defect therein, unless it had either actual or constructive notice of such defect.

HON. R S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by F. M. Reynolds against the city of Hattiesburg. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Reversed.

C. E Hill, for appellant.

The municipalities are not insurers of the safety of persons using streets and sidewalks. The only duty devolving upon them is to use ordinary care to provide reasonably safe streets and sidewalks for persons using due care and prudence. They are not required to anticipate every danger that might arise, and in this case the city was only required to provide a bridge that would be reasonably safe for the ordinary purposes for which bridges of this kind are used namely, that of crossing. (13 R. C. L., Highways, sec. 304), and had appellee been using the bridge at any point thereon ordinarily used by pedestrians in getting from the sidewalk on New Orleans street to Second street, or from Second street to the sidewalk on New Orleans street, as he charged in the declaration he was doing, then the accident would not have occurred.

At the close of the evidence for appellee, the appellant moved the court to exclude the evidence and grant a peremptory instruction to find for appellant, for the reason the proof failed to show that the city had either actual or constructive notice that the planks in the bridge were loose, and because of the variance between the allegations and the proof. The motion was overruled. At the close of the evidence for both sides, the motion was renewed. Among the grounds assigned being that the testimony for appellant showed affirmatively that the city had received neither actual or constructive notice that the planks were loose. This motion too, was overruled. Lack of notice was thus called to the court's attention three times, first by demurrer, and then by the two motions for the peremptory instruction. And in fact, for a fourth time, to-wit, by the fifth instruction for appellant, and it also, was refused. It was also assigned among thc grounds in the motion for a new trial.

The motion should have been sustained. The rule is universal that the municipality must have notice of the defect for a sufficient length of time before the accident, to have cured it and prevented thc injury, except in cases where the defect is authorized or created by the city itself. Cohea v. Coffeeville, 69 Miss. 561; Greenwood v. Harris, 42 So. 538; Town of Union v. Heflin, 61 So. 652; Saxon v. Town of Houlka, 65 So. 124; Dahmer v. City of Meridian, 71 So. 321; 6 Am. Eng. Cent. Ed., Municipal Corporations, sec. 1814 and 13 R. C. L., Highways, sec. 277, page 337. The mayor and two commissioners all testified they had no notice that the planks were loose, and had never received a complaint about the bridge.

It further appears that the point of the accident was much frequented by the public, and yet not one single witness was offered by appellee to show that loose planks had ever been observed prior to the injury by any one else, and there is no evidence to show that any one else was ever hurt there, which is competent to show that the municipality was not negligent in not observing the defect. 13 R. C. L., Highways, sec. 423.

The case of Cook v. City of Alimosa, 66 Iowa 427, 23 N.W. 907, is so thoroughly applicable to the facts here that we submit it as conclusive of thc case. A city is not chargeable with knowledge that a plank in one of its sidewalks is loose, so that, when one end is stepped on outside the sill, the other end will fly up, where it requires a close investigation to discover that the plank is loose, and the fact is known only to a few, who have either stepped on the end of the plank themselves or seen others do so."

We submit, therefore, that inasmuch as the appellee wholly failed to establish when the planks become loose, to show whether this condition was recent or of long standing, the verdict in this case cannot stand unless this court is willing to say that the doctrine of res ipsa loquitor should be applied to make out a case of negligence, which cannot be done under the law as to municipalities for the reason that, while a city may construct, reconstruct, and repair its streets, and may in other ways, exercise control over them, yet there is no such management or control on its part as will justify the application of the doctrine, since they are built and maintained for the use of the traveling public and are in constant use by them, and may immediately become defective or dangerous from such constant use though, they are properly constructed and are in every respect suitable for public travel. Hence to say that the mere happening of an accident affords evidence of negligence on the part of the city would often impose upon it a liability for an accident when it was not only free from negligence, but had used the utmost care to maintain its streets in a reasonably safe condition for public travel. 13 R. C. L. Highways, sec. 362.

The motion for the peremptory instruction should have been granted also because of the variance, heretofore pointed out. It is the universal law that a plaintiff in an action to recover for injuries received by reason of defects or obstructions in a street or highway cannot allege one cause of action and recover on another. It must therefore appear that his injury occurred in the manner alleged. 13 R. C. L., Highways, sec. 411; Beverage v. Rockport, 106 Me. 223, 76 A. 677; Gibbs v. Daytorn (Mich.) 131 N.W. 544. The materiality of the variance is obvious, having alleged there was a hole in the bridge, caused by the removal of two planks, it devolved upon the appellee to prove facts excusing his failure to see the hole, a thing which he could not do manifestly, because the accident occurred about three o'clock, in the afternoon, and this failure to show due care and caution would have entitled the appellant to a verdict. While the declaration did allege that appellee was using due care and caution, other allegations showed the contrary.

Talley & Mayson, for appellee.

The appellant, in its first assignment of errors complains that the declaration was insufficient and that the demurrer should have been sustained, for the reason that it did not aver that the appellee was free from contributory negligence. Counsel are mistaken in their construction of the language of the declaration. It is specifically averred in declaration, "that his injury was due solely to the negligence of the defendant in failing to provide a reasonably safe sidewalk or a bridge over which he could walk and pass without injuries to himself and that at the time of the injury he was exercising due care and caution and that his said injuries were wholly attributable to the negligence of the defendant for not maintaining said walks in a reasonably safe condition." It is only necessary for the plaintiff to aver that he was without fault unless the concrete facts stated by him in his pleadings otherwise show that he is guilty of negligence. 2 Thompson on Negligence, sec. 2363.

However we might remark in passing that since the passage of our comparative negligence statute, Laws 1910, Chapter 135, Hemingway's Code, secs. 300-2-3, all questions of negligence and contributory negligence are for the jury. It would naturally follow, then, that if the declaration showed a state of facts where both parties were negligent, the declaration would be good against a demurrer. The case of Vicksburg v. Hennesey, 54 Miss. 391, cited by counsel is not applicable for it holds that contributory negligence on the part of the injured is a defense. That was the law, of course, prior to the passage of the act above referred to. We challenge counsel to point out anything in the record suggestive...