Dow v. Town of D'lo

• Decision Date: 22 January 1934
• Docket Number: 30941
• Citation: 152 So. 474,169 Miss. 240
• Parties: DOW v. TOWN OF D'Lo et al
• Court: Mississippi Supreme Court

152 So. 474

169 Miss. 240

DOW v. TOWN OF D'Lo et al

No. 30941

Supreme Court of Mississippi

January 22, 1934

Division B

Suggestion Of Error Overruled February 5, 1934.

APPEAL from circuit court of Simpson county, HON. E. M. LANE, Judge.

Suit by Mrs. J. C. Dow against the Town of D'Lo and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Affirmed. Suggestion Of Error Overruled.

G. Q. Whitfield, of Jackson, and Edwards &amp Edwards, of Mendenhall, for appellant.

The circumstances of each case must determine whether constructive notice of the defect is to be attributed to the municipality, and hence constructive notice is ordinarily a question of fact for the jury.

7 McQuillin Municipal Corporations, section 3002, page 237; Greenville v. Middleton, 124 Miss. 310, 86 So. 804; Whitfield v. City of Meridian, 66 Miss. 570, 6 So. 244, 4 L. R. A. 834, 14 Am. St. Rep. 596; 28 Cyc. 1388, 1507; 6 McQuillan on Municipal Corporations, sections 2813 and 2814; Bailey v. Winston, 157 N.C. 252, 72 S.E. 916; Harriman v. City of Boston, 114 Mass. 241, 48 N.E. 186; Naylor v. Salt Lake City, 9 Utah 491, 35 P. 509; 20 L. R. A. (N. S.) 513; Jefferson Standard Life Ins. Co. v. Jefcoats, 143 So. 842; 137 So. 108; 125 So. 819; 126 So. 402; 116 So. 601.

It is the duty of the municipality to maintain the whole width of the sidewalk in a reasonably safe condition.

7 McQuillin Municipal Corporations, section 2931, pages 73 and 74; 184 Ill.App. 298; 110 Ill.App. 356; 3 Cush. (Mass.), 174; 180 Mo. 536; 191 N.C. 507; City of Jackson v. Carver, 35 So. 157; Jordan v. City of Lexington, 97 So. 758; City of Natchez v. Lewis, 43 So. 471; 145 So. 356; 10 So. 452; 38 So. 547; Seborn v. Charlotte, 171 N.C. 541.

The peremptory instruction given the defendant, Southern Bell Telephone & Telegraph Company, is just as manifestly palpable and reversible error. The hole in the sidewalk in this case was a public nuisance.

20 R. C. L., Nuisances, section 8, page 384; 178 Mass. 569; Matthews v. Missouri Pac. Ry. Co., 26 Mo.App. 79, 80 and 81; Fuller v. Andrews, 230 Mass. 139; Bixby v. Thurber, 80 N.H. 441.

Whether the street was wide enough to be safe, whether it was in a reasonably safe condition for public use by travelers who use ordinary care to avoid injury, are almost always questions for the jury.

2 Dillon on Municipal Corporations (4 Ed.), sec. 1060; House v. Metcalf, 27 Conn. 639.

The defendant, Southern Bell Telephone & Telegraph Company, in this case, was charged by the law and presumed to know of the condition of its entire line, and especially of the condition of all sidewalks which it made use of, and to know or discover within a reasonable time, whether any such sidewalk was in a defective condition, and to repair the same, but failing in that to respond to damages to any pedestrian hurt thereby by reason of said defective condition.

62 C. J. 62, secs. 66, 67; Dobbins v. Western Union Telegraph Company, v. So. 919.

When the Southern Bell Telephone & Telegraph Company suffered the said public nuisance to continue on its sidewalk, it amounted on its part to a failure to perform that express duty to the public and required by statute, section 7061, Mississippi Code of 1930.

Matthews v. Missouri Pac. Ry. Co., 26 Mo.App. 79.

W. M. Lofton, of Mendenhall, for appellee, Town of D'Lo.

The evidence shows beyond dispute, that the appellant here, and plaintiff in the court below, had lived in the home abutting this sidewalk where the alleged injury occurred for twelve or fourteen years; and during all that time she never knew that this hole was there until that day in December, 1931, when she stepped into it while sweeping the China leaves that fell on the sidewalk from a tree in her yard. If she failed to make this discovery of that little hole, during the twelve or fourteen years that she had lived there, then it could not be successfully argued that the said town of D'Lo and its officials, had been negligent because they had not discovered it.

Before the said town of D'Lo could be held liable in damages to the plaintiff it must be shown that the town of D'Lo and its officials and employees were negligent in their failure to discover the hole in the sidewalk in this case.

The undisputed testimony of the appellant herself, shows that at the time she received the injury, she was making use of the sidewalk for a purpose wholly inconsistent with that for which it was established.

Jackson v. City of Greenville, 72 Miss. 220, 16 So. 382.

A municipality is not liable to any party injured because of defects in its sidewalks, if used for any other purpose than that of travel.

Butler & Snow, of Jackson, for appellee, Southern Bell Telephone & Telegraph Company.

The evidence does not show any connection whatever between the Southern Bell Telephone Company and the hole in question; does not show that it dug it, ordered it to be dug, assumed any control over it, maintained it, used it, or in any way or manner had any notice of its existence.

The rule is that no one can be held liable for the existence of a nuisance, unless he has knowledge, either actual or imputed, of it.

Cooley on Torts (3 Ed.), 1287; 20 R. C. L. 392, et seq.; 46 C. J. 741, 744, 745, 746; Walters v. Wicomico County, 35 Md. 385; Morris Canal & Bank Company v. Ryerson, 27 N. J. L. 457; 14 A. L. R. 1094, et seq.; Buckingham v. Elliot, 62 Miss. 296; King v. Railway Company, 88 Miss. 456.

The rule is universal that if the former owner creates a nuisance on land not his own, whether public or private, that the subsequent purchases is not liable for maintaining the nuisance without it adopts or maintains it, or assumes the duty to do so.

46 C. J. 746; Fordyce v. Russell, 59 Ark. 312; Wayland v. Railway Company, 75 Mo. 548; Walters v. Wicomico County, 35 Md. 385; Morris Canal & Bank Co. v. Ryerson, 27 N. J. L. 457; Pollock on Torts (9 Ed.), chapter 10, page 412; Cooley on Torts (3 Ed.), 1297; Lincoln v. First National Bank, 93 N.W. 698.

In this case the Southern Bell Telephone & Telegraph Company did not purchase the hole in the ground; did not take possession of the hole in the ground; never knew of its existence until approximately ten years after the hole is alleged to have been dug. Under no theory, can it be said that the Southern Bell Telephone & Telegraph Company maintained this nuisance.

The evidence fails to show with any degree of certainty that the predecessor in title of the Southern Bell Telephone & Telegraph Company created, or had anything to do with the creation of the hole in question, or that the same was constructed by the servants of the Cumberland Telephone & Telegraph Company in furtherance of the master's business, or within the scope of their employment.

It is elemental that it was necessary for the declaration to contain this allegation to state a cause of action on the appellant's theory.

39 C. J. 1353, 1355; Y. & M. V. R. R. v. Denton, 160 Miss. 851, 860; I. C. R. R. v. Green, 130 Miss. 622, 630; Tyson v. Utterback, 154. Miss. 381; Hercules Powder Co. v. Calcoate, 161 Miss. 860; Y. & M. V. R. R. v. Green, 147 So. 323; Burnside v. Gulf Refining Co., 148 So. 219.

The rule is perfectly well settled that it is proper to give a peremptory instruction where the court would set aside a verdict as not based upon evidence.

Wooten v. R. R. Co., 89 Miss. 322; Flora v. Express Co., 92 Miss. 66; Elliot v. R. R. Co., 145 Miss. 769; M. & O. R. R. v. Clay, 156 Miss. 463.

Argued orally by G. Q. Whitfield, for appellant, and by George Butler and W. M. Lofton, for appellee.

Griffith, J., Anderson, J., delivered the opinion of the court on suggestion of error.

OPINION

Griffith, J.

Appellant was injured severely by falling into a hole on the outer edge of the sidewalk of the street, the said hole being immediately in front of the residence of the plaintiff. The hole was not an open one, but had been covered over with plank and dirt and by the overlapping of carpet grass, as will be stated later. Plaintiff was sweeping off some accumulated leaves, and, not being conscious of the presence of the hole, she stepped upon its covering, which gave way, and she was thus injured. The town contends that the street and so-called sidewalk had never been taken over for improvement and maintenance by the town, and, if mistaken in this, then that appellant was not using the sidewalk for the purpose of travel, but for a different purpose of her own about which the town owes no municipal duty, relying on this point on Jackson v. Greenville, 72 Miss. 220, 16 So. 382, 27 L. R. A. 527, 48 Am. St. Rep. 553. We lay those contentions aside and place our decision upon other grounds now to be stated.

The measure of the duty of a municipality 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 v. Hayman, 124 Miss. 525, 535, 87 So. 11; City of Natchez v. Cranfield, 155 Miss. 540 124 So. 656. There is no assertion in the evidence that the town authorities had actual knowledge of the hole in the sidewalk, but the case is based upon the contention that there was constructive notice. The rule in that respect is that the danger must have been one which should have been discovered by the town authorities on an inspection made with ordinary care and within a reasonable time, and that after such notice there shall have been a reasonable time for the repair or remedy of the danger. There is no fixed requirement as to any formal inspection, or when inspection shall be made or how often, that question depending upon a variety of circumstances, among which are to be considered the size of the municipality, and, therefore, the number of its active municipal...