City of Hazlehurst v. Matthews

• Decision Date: 18 October 1937
• Docket Number: 32751
• Citation: 180 Miss. 42,176 So. 384
• Court: Mississippi Supreme Court
• Parties: CITY OF HAZLEHURST v. MATTHEWS

176 So. 384

180 Miss. 42

CITY OF HAZLEHURST v. MATTHEWS

No. 32751

Supreme Court of Mississippi

October 18, 1937

Suggestion Of Error Overruled December 13, 1937.

(En Banc.)

1. MUNICIPAL CORPORATIONS.

The duty of a municipality to keep its streets and sidewalks reasonably safe for the traveling public is not an absolute one; reasonable care to keep them reasonably safe for those using them with due care being the criterion.

2. MUNICIPAL CORPORATIONS.

If obstruction or defect in street or sidewalk is one that municipality in exercise of ordinary care could not have reasonably foreseen would cause some injury, there is no liability.

3. MUNICIPAL CORPORATIONS.

Pedestrian who was thoroughly familiar with location of penny platform scales in front of building, and knew that the scales protruded about 4½ inches onto the sidewalk, which was 9 feet wide, was not entitled to recover from city for injuries sustained in fall when he stumbled over protruding platform of the scales as he was allegedly backing along sidewalk in retreat from the aggressor in a fight in which pedestrian was engaged.

ETHRIDGE J., dissenting in part.

HON. J F. GUYNES, Judge.

APPEAL from the circuit court of Copiah county HON. J. F. GUYNES Judge.

Action by Leland Matthews against the City of Hazlehurst. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

J. Hunter Garth and W. S. Henley, both of Hazlehurst, for appellant.

The alleged defect is insufficient basis of liability.

In so far as there is any alleged obstruction upon the sidewalk, the platform of the scales extended over only four inches, and was 5 1/4 inches high. The rest of the scales was, of course, on private property adjacent to the sidewalk and in close proximity thereto.

The case of the City of Meridian v. Crook, 69 So. 182, deals with what is a reasonably safe condition, and holds that a depression in the sidewalk a depth of three inches is not such a defect as to render the city liable, and, we believe, demonstrates that the condition which exists m the sidewalk involved in this case did not constitute a sufficient obstruction to constitute a violation of the requirement that a city maintain its sidewalks in a reasonably safe condition.

City of Richmond v. Lambert, 28 L. R. A. (N. S.), 380; Miss Coast Traction Co. v. Manuel, 85 So. Gulfport & 308; City of Greenville v. Lowery, 159 So. 121; City of Meridian v. Crook 69 So. 182.

If the scale had been set in that part of the street usually traveled by the public, the city's negligence would be a very different question from that involved where the scale is set on the extreme edge of a nine foot sidewalk and ample room for all persons to travel who are traveling in the usual manner and using ordinary care for their own safety.

Gulfport & Miss. Coast Traction Co. v. Manuel, 85 So. 308; Phillips v. City of Jackson, 147 So. 664; Seabridge v. Poli, 119 A. 214; DeHoney v. Harding, 300 F. 699; Gumbs v. Klorza, 283 N.Y.S. 866.

We respectfully submit that the defect in this instance which was located mostly off of the sidewalk, but partially on the edge of the sidewalk was not such a defect as to make it probable that an accident would occur. Any person exercising ordinary care for their own safety would have a perfectly level sidewalk in good order eight feet and eight inches in width to travel, unobstructed and free from danger.

The Mississippi court is committed to the view that obstructions may be placed in streets even to the extent of telephone poles or poles for electric lights provided sufficient width is left in the street for the necessary travel, and if sufficient width for the purpose of the traveler was provided, the city is not liable for the obstruction in other portions of the street.

Matthews cannot recover because he was using the street as a place to fight, and not for the purpose of traveling.

Jackson v. City of Greenville, 72 Miss. 220, 16 So. 382, 48 A. S. R. 553, 27 L. R. A. 527; Dow v. Town of D'Lo, 152 So. 474.

The measure of a municipality's duty in the maintenance of its streets is to use ordinary care to keep them in a reasonably safe condition for persons using ordinary care and prudence.

McComb City v. Hayman, 87 So. 11.

The court limits the municipality's duty to the traveling public, and only to such as are using due care in traveling the streets.

Phillips v. City of Jackson, 147 So. 664; Jackson v. City of Greenville, 72 Miss. 220; Childrye v. City of Huntington, 11 L. R. A. 313.

The assault by Strahan was proximate cause of injury.

Alexander v. Town of New Castle, 17 N.E. 200; Milostan v. City of Chicago, 148 Ill.App. 540; Ladle v. City of Chicago, 204 Ill.App. 475; Miller v. Bahmmuller, 142 N.Y. 924; Alger v. City of Lowell, 3 Allen's Reports, 204; Hartnett v. Boston Store, 265 Ill. 331, L. R. A. 1915C, 460; Bufkin v. L. & N. R. R., 137 So. 517; L. & N. R. R. v. Daniels, 135 Miss. 33, 99 So. 434, 34 A. L. R. 516; Howell v. I. C. R. R., 75 Miss. 242, 21 So. 746, 36 L. R. A. 545; Marqueze v. Sonteheimer, 59 Miss. 430; Vicksburg & Meridian R. R. Co. v. Phillips, 64 Miss. 693; 45 C. J. 925-26, 936; Restatement of Law, Torts, page 1178, secs. 440, 441.

Myron S. McNeil, of Hazlehurst, and J. M. Stevens, Jr., of Jackson, for appellee.

The court will take judicial knowledge of the fact that Hazlehurst, being located in the vegetable center, is built up with small farms in every direction. The testimony shows that the place where the accident occurred was habitually used by the public and that frequently this particular street at this point became "jammed" with people, and that on the night in question the presence of the scales upon the sidewalk was obscured on account of the shed that extended over the sidewalk; that on account of a spring in the scales when a person's foot came in contact with them the top of the scales would slip or move. Under these conditions it is the contention of the appellee that the scales located where they are constituted a nuisance.

Drake v. Corning Building Co., 272 N.Y.S. 726.

Though it may not appear that an obstruction in the street which proves to be dangerous and causes injury was erected by permission of the city, it is liable if the same was continued after knowledge of its existence. Where an obstruction in the street is created by the municipality or permitted to be erected by another it must take notice of such defects as ordinary, care will discover

Nesbitt v. City of Greenville, 69 Miss. 22; Seabridge v. Poli, 98 Conn. 297; Nye v. Liggett, 224 Mass. 401, 113 N.E. 201; Bowling v. MacLean Drug Co., 248 Ill.App. 270; Solomon v. Alps Kandy Shoppe, 182 A. 844.

While this court has never been called upon to determine whether or not it was negligence for a city to permit what is commonly known as a penny weighing machine to be and remain upon the street, it is held in the case of Gould v. Town of Newton, 157 Miss. 826,: "In action to recover damages against town for an injury alleged to have been sustained by a pedestrian because of a fall resulting from unsafe condition of sidewalk, evidence in respect to negligence of the town in permitting stake on sidewalk in a regularly traveled way held sufficient for submission to jury, in view of comparative negligence statute. Laws 1920, chapter 312."

City of Lumberton v. Schrader, 168 So. 77; City of Meridian v. McBeath, 80 Miss. 485, 32 So. 53.

We are unable to reach any other conclusion except that the city was negligent in permitting the weighing machine to be where it was at the time of the accident in question. At least, it was a question for the jury, and the court can see from the instructions marked given in the case that the question of the negligence of the city was left to the jury to determine.

City of Birmingham v. Henderson, 160 So. 728.

Was the weighing machine, situated as it was under the circumstances of this case, the proximate cause of plaintiff's injury? Cooley on Torts (4 Ed.), Vol. 1, p. 130, defines "proximate cause" as follows: "A proximate cause has been aptly defined as 'one which in natural sequence, undisturbed by any independent cause, produces the result complained of.' In discussing this question the Supreme Court of the United States said: The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft cited case of the squib thrown in the market place.'"

Counsel erroneously assume that Matthews at the time he received the injury was engaged in a fight. We do not think that the facts in this case justify this assumption. Can it be said that a person fleeing from another and undertaking to avoid his adversary in this way is engaged in a fight? A fight as defined by American and English Encyclopedia of Law (2 Ed.), vol. 13, page 12, is: "To fight is to strike with a weapon for victory in battle or single combat; to attempt to defeat, subdue, or destroy an enemy either by blows or weapons."

It is uniformly held by all the law writers that a person who is not at fault himself and who is lawfully upon a street and at the time he receives his injuries he is undertaking to escape danger by flight and comes in con tact with some negligent obstruction in the street and is injured that he may recover.

43 C. J., 1066; 7 McQuillan on Municipal Corporations (2 Ed.), sec. 3038; Mayronne v. Keegan, 42 So. 212 Dondono v. City of Indianapolis, 89 N.E. 421.

We insist that the evidence Shows conclusively and beyond all question of a doubt that Matthews was undertaking to escape...