City of Vicksburg v. Scott

• Decision Date: 15 January 1934
• Docket Number: 30833
• Citation: 168 Miss. 572,151 So. 914
• Court: Mississippi Supreme Court
• Parties: CITY OF VICKSBURG v. SCOTT

151 So. 914

168 Miss. 572

CITY OF VICKSBURG v. SCOTT

No. 30833

Supreme Court of Mississippi

January 15, 1934

Division A

1. MUNICIPAL CORPORATIONS.

City must use ordinary care to keep its river landings in reasonably safe condition and free from unsafe and dangerous condition, for use of persons exercising ordinary care.

2. MUNICIPAL CORPORATIONS.

In action for injuries to person falling into concrete box used in connection with sewer, on river landing after parking automobile, city's negligence in constructing and maintaining large concrete box in ground without covering thereon in close proximity to paved way held for jury.

3. MUNICIPAL CORPORATIONS. Instruction on duty of city in matter of maintaining excavation on river landing near paved way held not erroneous as enlarging city's duty.

Instruction was, in substance, that persons lawfully using paved portion of landing of city could assume that landing was reasonably safe for purpose of driving or parking thereon and alighting from their automobiles, and free from all dangerous or unsafe places, not only on paved parts, but the unpaved parts in such close proximity thereto as to be dangerous to one using paved parts for travel or parking or alighting from automobile while exercising care of ordinarily prudent person.

4 DAMAGES.

Six thousand dollars held excessive for contusions of chest and two broken ribs, where injuries were not permanent and medical and hospital bills and loss of earnings were less than five hundred dollars; three thousand five hundred dollars being sufficient.

HON. E L. BRIEN, Judge.

APPEAL from circuit court of Warren county HON. E. L. BRIEN, Judge.

Action by Charles O. Scott against city of Vicksburg. From a judgment for plaintiff, defendant appeals. Affirmed with remittitur.

Affirmed, with remittitur.

R. M. Kelly, of Vicksburg, for appellant.

The duties of the municipal authorities in adopting a general plan of drainage, and determining when and where sewers shall be built, of what size and at what level, are of a quasi-judicial nature, involving the exercise of deliberate judgment and large discretion, and depending upon considerations affecting the public health and general convenience throughout an extended territory; and the exercise of such judgment and discretion in the selection and adoption of the general plan or system of drainage is not subject to revision by the court or jury in a private action for not sufficiently draining a particular lot of land. The basic principle of this rule is that, discretionary authority being vested in the governing body of a city to adopt such plans, defects therein are referable to mere errors in judgment.

Johnson v. Dis. of Columbia, 30 L.Ed. 75.

The verdict was excessive.

Shell Petroleum Corp. v. Kennedy, 141. So. 335; National Box Co. v. Henry, 140 Miss. 347, 105 So. 854; Southern R. R. Co. v. Turner, 49 So. 113; Chapman v. Powers, 150 Miss. 687, 116 So. 609; City of Jackson v. Carver, 82 Miss. 583, 35 So. 157; Yazoo & Miss. Valley Railroad Co. v. Mothershed, 122 Miss. 835, 85 So. 98; Yazoo & Miss. Valley Railroad Co. v. Lane, 46 So. 959.

The court erred in granting the plaintiff the following instruction: "The court instructs the jury that one lawfully using the paved part of the driveways, or landings, of the city, has the right to assume, and to act on the assumption, that the same is reasonably safe for the purpose of driving, or parking thereon, and alighting from their cars, and free from all dangerous or unsafe places, not only on the paved parts but the unpaved parts in such close proximity thereto as to be dangerous to one using the paved parts for travel, or parking thereon, or alighting from cars, while exercising such care as an ordinarily prudent person would have used under similar circumstances."

Certainly at best this instruction is misleading, starting out as it does with the premise that this plaintiff was using the paved part of the driveway or landing of the city, when as a matter of fact he departed from the paved way or landing and negligently assumed a position on that part of the landing against which plaintiff and other parties were warned by the protection of the concrete wall and the electric light.

Where there is a safe way and an unsafe or dangerous way, and the dangerous way is chosen, the person who is injured by reason of his choice of the unsafe way will be barred from recovery.

20 R. C. L., sec. 102; 7 McQuillin, pp. 270, 271, 290, sec. 3020, p. 203, sec. 2984; Natchez v. Cranfield, 155 Miss. 540, 124 So. 656; City of Meridian v. Crook, 109 Miss. 712, 69 So. 182; McComb City v. Hayman, 124 Miss. 524, 87 So. 11; Gulf & M. C. Traction Co. v. Manuel, 122 Miss. 266, 85 So. 308.

Thames & Thames and Brunini & Hirsch, all of Vicksburg, for appellee.

In the case of City of Vicksburg v. Haralson, 136 Miss. 872, this honorable court held that the driver may assume that the street is reasonably safe for travel, and that he is not required to use extraordinary care. That is the principle announced in Instruction No. 7, which we submit perfectly announces the law.

The law applicable to landings and streets insofar as the safety is concerned is identical in both instances, and the legal obligation rests upon the city to maintain its streets and public landings in a reasonably safe condition, and free from unsafe and dangerous conditions for the use of the public.

43 C. J., 1170, 1173, 1174 and 1175; Byrnes v. City of Jackson, 140 Miss. 656; 43 C. J. 956, 1042; Carver v. Jackson, 82 Miss. 583, 35 So. 157; Nesbit v. Greenville, 69 Miss. 22, 10 So. 452; Vicksburg v. Hennessey, 54 Miss. 391, 28. Am. Rep. 354; Butler v. Oxford, 69 Miss. 618, 13 So. 626; McComb City v. Hayman, 124 Miss. 525, 535; Garr v. City of McMechen, 104 S.E. 101; 43 C. J. 1008, 1036, 1060.

In exercising ordinary care a traveler at night, in the absence of knowledge to the contrary, has the right to act on the assumption that the street or way is in a reasonably safe condition for travel by night as well as by day; and is not bound to anticipate that he will encounter excavations, without having some notice thereof by lights, or without other precautions taken for his protection.

43 C. J. 1095, 1102; City of Sapulpa v. Young (Okla.), 296 P. 418; Vicksburg v. McLaine, 67 Miss. 4.

The verdict was not excessive.

National Box Co. v. Henry, 140 Miss. 397; Southern R. R. Co. v. Turner, 49 So. 113; Chapman v. Powers, 150 Miss. 687; I. C. R. R. Co. v. Price, 72 Miss. 826; Miss. Central R. Co. v. Hardy, 88 Miss. 733; Southern R. Co. v. Isom, 92 Miss. 82; R. R. Co. v. Cobb, 94 Miss. 561; St. Louis & San Francisco Ry. Co. v. Bridges, 159 Miss. 268, 131 So. 99.

OPINION

Cook, J.

The appellee brought this suit against the city of Vicksburg to recover damages for personal injuries alleged to have been sustained by him as a result of the negligence of the city in constructing and maintaining a sewer or drainage pipe under the sea wall and river landing along the Yazoo canal or river in said city. There was a verdict and judgment in favor of appellee for six thousand dollars, from which the city appealed.

Without the aid of a personal inspection of the premises and the photograph offered in evidence it would be difficult to so describe, within the bounds of an opinion of reasonable length, the premises and surrounding territory as to be readily intelligible to the reader, and we will therefore limit the statement of facts to those that appear to be necessary to an understanding of the points herein decided.

The landing upon which the injury occurred lies between the Yazoo canal or river and a sea wall which extends for a distance of approximately ten city blocks along or near the western boundary of the most westerly public street, extending north and south, in the city of Vicksburg. This sea wall was erected for the purpose of protecting that part of the city which during times of excessive high water was subject to overflow. Through this sea wall there are numerous gates or passageways to the river landing, which at times of high water are closed and sealed, but at all other times are kept open to accommodate travel to and from the landing. When these gates are closed, as the river rises, it is necessary to operate pumps inside the wall to carry the waters which accumulate there over the wall and into the canal, as a large part of the city of Vicksburg drains toward the wall.

For low stages of the river the drainage is provided by large sewers or drainage pipes, three feet in diameter, which pass under the wall and on under the landing to the river. These drain pipes are so constructed as to prevent the water being forced back through the pipes east of the wall and into the city. For this purpose the pipes are equipped with "flap valves," which are closed at high stages of the river and remain open at low stages in order that the drainage of the city may pass through unobstructed. For the purpose of opening, closing, and operating...