City of Meridian v. McBeath

• Decision Date: 26 May 1902
• Citation: 80 Miss. 485,32 So. 53
• Court: Mississippi Supreme Court
• Parties: CITY OF MERIDIAN v. JOHN F. MCBEATH

32 So. 53

80 Miss. 485

CITY OF MERIDIAN v. JOHN F. MCBEATH

Supreme Court of Mississippi

May 26, 1902

March 1902

FROM the circuit court of Lauderdale county HON. GUION Q. HALL Judge.

McBeath the appellee, was plaintiff in the court below; the city of Meridian, appellant, was defendant there. From a judgment for $ 950 in plaintiff's favor the defendant appealed to the supreme court. The facts are fully stated in the opinion of the court.

Affirmed.

Miller & Buskin, for appellant.

The universal rule is that municipal corporations are not liable for every accident that happens in their streets, that they are not insurers of the safety of those who use them, that the corporation's duty is discharged when they have made them reasonably safe for people of ordinary prudence, and that those will be estopped from complaining who, well knowing the means which have been provided by the corporation, suffer injury in consequence of their own neglect to avail themselves of that knowledge. 2 Dillon on Munic. Corp. (2d ed.), sec. 917; Raymond v. Lowell; 6 Cush 524; Vicksburg v. Hennesy, 54 Miss. 396.

We also find in the case of Graves v. Shattuck, 69 Am. Dec., 544, this doctrine announced: "That cities and villages may reasonably accommodate and protect foot passengers by sidewalks, curbstones, posts, and railings, and so exclude carriers from a part of the way, leaving them a reasonably safe and convenient passage; that such curbstones, posts, and railings, properly construed, are in no sense nuisances, and that where sidewalks are thus reasonably and properly set apart the owners of the soil may lawfully use the dividing space between the carriage passage and the sidewalks for the growth of trees, for ornament, or use, and trees thus situated are in no sense nuisances."

And again, in the case of Keiffer v. Hummelstown, 17 L. R. A., 220, we have this language: "Now the question is not whether a broader road would have enabled the plaintiff to pass along safely with her frightened horse and disabled wagon, but whether the road was broad enough and good enough for the purpose of a highway in that place, or be safe for the purpose for which it was made, and did it accommodate the traveling public using it in the ordinary manner, with reasonable facilities for traveling. That an accident did happen is clear, but that does not settle the question; it is necessary to inquire further, whether the accident was a natural or probable result of any act or omission of the town officers which rendered the highway unsafe for the purpose of travel conducted in the ordinary manner, and by the ordinary means of conveyance, as the evidence in the present case dearly shows that there was ample space left for the roadway, and that the accident was not the natural or probable result of any act or omission of the borough officers which rendered the highway unsafe for the purposes of ordinary travel.

"It follows that the third point of the defendant should have been affirmed, requiring a binding instruction to find for the defendant. Further, it is said that to entitle the plaintiff to recover it was therefore not enough to show that he sustained an injury upon the highway and that he was free from contributory negligence; he must also show that the ordinary needs of public travel conducted in the ordinary way upon this road had not been anticipated and provided for." The appellee in this case testified that there was ample room provided for vehicles, and we submit that if he, with the use of the knowledge that he possessed, had exercised reasonable care, the accident could never have occurred.

It is declared in the case of Vicksburg v. Hennesy, supra, that the universal rule in this class of cases is "that the injury must proceed wholly and solely from the defective highways, that the plaintiff must be entirely free from any negligence which contributed to the result, and that the burden of showing, affirmatively, that he exercised at least ordinary care and prudence is upon him; unless he establishes this he must fail, notwithstanding he has shown the greatest remissness on the part of the corporate authorities."

"If the plaintiff was guilty of any want of ordinary care and prudence, however slight, which neglect contributed directly to produce the injury, he cannot recover." Cremer v. Portland, 36 Wis. 92.

"Persons are not to be entirely debarred from the use of a street because it may be defective, or somewhat dangerous, but where danger exists and it is known, ordinary prudence would require of those using such streets greater diligence, care, and caution, corresponding with the danger, to avoid injury." Emporia v. Schmidling, 33 Kan. 485; City of Indianapolis v. Cook, 99 Ind. 910.

To sum up, our contention is that the city acted within its powers under the law in directing the post to be placed where it was, for the purpose of protecting the sidewalk and curbstone and foot passengers, especially as it left sufficient space within the streets for all vehicles, and that it provided three electric lights within a short distance from said corner, and the further fact that the plaintiff was perfectly familiar with the surroundings at the time that he drove in a trot, either brisk or otherwise, along and over said post especially in view of the fact that municipal corporations are not insurers of the safety of the lives or limbs of persons who use their streets and side walks. In view of this, and the admission of the appellee as to his familiarity with...