Dahmer v. City of Meridian
| Decision Date | 10 April 1916 |
| Docket Number | 17696 |
| Citation | 111 Miss. 208,71 So. 321 |
| Court | Mississippi Supreme Court |
| Parties | DAHMER v. CITY OF MERIDIAN ET AL |
APPEAL from the circuit court of Lauderdale county, HON. J. L BUCKLEY, Judge.
Suit by Claud L. Dahmer against the City of Meridian and another. From a judgment for defendants, plaintiff appeals.
One Hester was the owner of a lot in the city of Meridian upon which a billboard had been erected by one Hopper, who afterwards died. The property was afterwards leased to one Louin, who entered into a contract with appellee, Ziller whereby Ziller secured the privilege of using said billboard. The billboard was fastened to posts and was about two and one-half feet from the sidewalk. Appellant, while walking along the sidewalk holding an umbrella over him to protect him from the rain, was struck by the billboard, which was blown over across the sidewalk, and received the injuries sued for. The suit was brought against the city of Meridian and Ziller jointly, being an action in tort for damages for personal injuries, plaintiff claiming that the accident was caused by the negligence of Ziller in maintaining an insecure and unsafe billboard, and that the city was liable for permitting Ziller to maintain a dangerous billboard in close proximity to the sidewalk.
The city of Meridian gave notice under a plea of general issue that it would show that the billboard was located on private property, and was not apparently dangerous to pedestrians and that no complaint had been made of its being insecure and that it was not a nuisance, and that it was not imminently and obviously dangerous, and that the city was without authority to abate it as a nuisance, and that the city was therefore not liable.
Ziller defended upon the grounds that he had only leased the privilege of posting signs on the billboard which did not belong to him, was not erected by him, and was not his land or land leased by him, and that nothing he had done had made the billboard less secure.
After the plaintiff had introduced his evidence, there was a peremptory instruction for defendants, and plaintiff appeals.
Affirmed.
Fewell & Cameron, for appellant.
The main questions to be decided by this court are as follows: First, was the city of Meridian under any duty to its citizens and pedestrians going along and over its public sidewalks to exercise due care to protect such pedestrians from being injured by the falling of such a sign board; as the testimony shows, was the sign board inflicting the injury upon the plaintiff in this case? Second, was the appellee, Ziller, under any duty to have so erected the sign board in question and having fastened same securely so as to prevent it falling or being blown down upon a pedestrian walking along the public sidewalks of the city of Meridian? Third, if either of the defendants in this case were under any duty to the plaintiff under the circumstances, were they negligent in performing their duty and was the question of their negligence under the facts of this case, one for the court or for the jury?
It is stated in Abbot's Municipal Corporation, section 1023 as follows: "Injuries may occur through falling objects thrown from buildings near a highway or by the fall of dangerous objects directly contiguous to or upon a walk, a liability seems to exist in this case." 33 Rep. 491, 92 Am. St. Rep. 900, 69 Miss. 22, 67 Miss. 99, Am. Dec. 486, 56 Am. Rep. 443.
We respectfully submit that the case of Reynolds v. Van Burin, 42 L. R. A. (N. S.) 129 has no application whatsoever to the facts of this case and even if it did that is not the law of Mississippi. And even in this case it is stated that had the owner of the sign had any thing to do with the building of same that he would have been liable.
We take it that the trial court in this case took the position that the doctrine of res ipsa loquitur did not apply to this case for some reason unknown to appellant's counsel and in this we submit the trial court was in error, see Spangler v. Williams, 67 Miss. 1; A. & V. Ry. v. Groom, 97 Miss. 201.
We especially call the court's attention to the case of Carrie Waller (Minn.), 12 L. R. A. (N. S.) page 721, and the very valuable and exhaustive note to said case and to the case of McCrorey v. Garrett (V. A.), 24 L. R. A. (N. S.), page 139. In both of these last cases the court will note that the doctrine of res ipsa loquitur was applied.
For the sake of the argument, lets assume that the doctrine of res ipsa loquitur did not apply in this case, then we submit to this court that the question of negligence of both defendants was a question for the jury and not for the court. How it could be argued that it was not negligence for a city to permit such an object as the one in question to remain close to its sidewalk, especially in view of the condition of the object and the ground around it is entirely beyond the imagination of counsel and whether the city had actual knowledge of the conditions or whether the conditions had existed for such a length of time as to charge it with knowledge were questions for the jury assuredly.
When the defendant, Ziller, tacked on his metal sign he did so at his peril, at least he was under duty to see that the fence or board to which he tacked same were reasonably safe and sound and he was under the duty to maintain said sign and its supports in a reasonably safe condition.
All of these questions we submit to the court were questions for the jury and we further submit to your honors that it was shown in this case that the supports and timbers to which this heavy sign was attached were rotted to such an extent as to make a dead fall out of the bill board; so even without the aid of the doctrine heretofore referred to, the question of negligence vel non under the circumstances of the case was one for the jury and not for the court. On page 7 see opinion of Judge Smith in Railroad v. Daniels, as follows:
"The height to which evidence must rise in the scale of proof in order to entitle a party litigant to a peremptory instruction, is of course, very much greater than that to which it must rise in order to entitle such a party to the verdict of a jury. In Swan v. Liverpool, etc. Co., 52 Miss. 707, this court quoted with approval the following statement made in Perry v. Clarke, 5 How. 500, with reference to the circumstances under which a peremptory instruction should be given: Again, in Whitney v. Cook, 53 Miss. 559, it was said: "Such an instruction is proper only where all the facts in evidence being taken as absolutely true every just inference from them failed to maintain the issue."
We feel that the further citation of authorities or a further decision of the facts and circumstances and the law of this case would only be adding to the already great burden of this court and in view of the ground covered by the notes to the cases in L. R. A. We respectfully submit that enough has been said.
In conclusion we call the court's attention to other decisions of our supreme court that have at least a slight bearing upon the case at bar. 54 Miss. 391, 64 Miss. 777, 67 Miss. 4, 69 Miss. 561, 82 Miss. 583, 80 Miss. 485, 86 Miss. 630, 89 Miss. 121, 90 Miss. 310.
Aimis & Dunn, for appellee.
The only duty which rested upon the city related to the safety of the sidewalk along which the plaintiff was traveling at the time of his injury. That duty was to exercise ordinary care to keep and maintain the sidewalk in a reasonably safe condition for the use of persons exercising ordinary care and caution. See City of Meridian v. Crook, 69 So. 182; Vicksburg v. Hennesey, 54 Miss. 391; Nesbit v. Greenville, 69 Miss. 22; 2 Dillion, Mun. Corp. 1006.
Before the plaintiff in this case was entitled to recover as against the city it was incumbent upon him to prove that the city had violated this duty. In other words that it had failed to exercise ordinary care to keep and maintain the sidewalk in a reasonably safe condition for the use of persons exercising ordinary care and caution. The mere fact that the bill board blew down on him and hurt him is no proof of the negligence of the city. Under the doctrine of res ipsa loquitur it might be proof of negligence in the construction and maintenance of the bill board which fell, but the city was not charged under the law with the duty either of construction or maintenance of the bill board located on private property. That was a duty which rested upon the owners of the private property and the user of the bill board.
The doctrine of res ipsa loquitur does not apply in this case as against the city for the reason that the bill board was not constructed by the city, nor was it on the city's property, nor was it under the supervision, control or use of the city. In the case of Scott v. Docks Company, 2 H. & C. 596, Erle, Justice, says: "When the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from want of care. ...
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