Higginbottom v. Village of Burnsville

• Decision Date: 19 February 1917
• Docket Number: 18809
• Citation: 113 Miss. 219,74 So. 133
• Court: Mississippi Supreme Court
• Parties: HIGGINBOTTOM v. VILLAGE OF BURNSVILLE

74 So. 133

113 Miss. 219

HIGGINBOTTOM v. VILLAGE OF BURNSVILLE

No. 18809

Supreme Court of Mississippi

February 19, 1917

Division B

APPEAL from the circuit court of Tishomingo county, HON. CLAUDE CLAYTON, Judge.

Suit by R. M. Higginbottom against the village of Burnsville. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

W. J Lamb, for appellant.

Counsel for appellee, in their brief, admit that there was a defect in the culvert and that the city had knowledge of the defect that the defect had been there for several months before the injury occurred, and the village had actual notice; and if it had not actual notice, the defect had been there long enough for the village to have had constructive notice. These admissions on the part of the attorneys for appellee leave nothing to go before the court except the principles of law applicable to the case.

Counsel for appellee cite the case of Meridian v. Crook, 69 So. 182, and ask for an affirmance of the case at bar because of the decision in that case. The opinion of the court in the case of City of Meridian v. Crook, shows wherein the case is different from the case of City of Natchez v. Lewis, 90 Miss. and Birdsong v. Mendenhall, 97 Miss.

The case at bar comes squarely within the doctrine laid down in the case of City of Natchez v. Lewis, for the testimony in the case at bar shows that this culvert had been defective for a year and had washed out a hole eleven inches deep, and one-third of the way across the width of the public highway, and the village had actual notice of its defective condition, and had failed to repair the same.

The case of Birdsong v. Mendenhall, 97 Miss. 544, sustains the contention of the appellant in the case at bar, and in delivering the opinion of the court in the case of City of Meridian v. Crook, the court deals at length in drawing the distinction between the Crook case and the case of City of Natchez v. Lewis, and Birdsong v. Mendenhall.

In the Birdsong v. Mendenhall case the record shows that Birdsong had knowledge, and knew of the dangerous condition of the street, and this court said in that case: "But this was not sufficient to preclude a recovery against the town for the injury sustained. Of course, his knowledge of the condition of the street was a factor in the son injured thereon until it is first shown that the person so injured was, at the time of his injury, in the exercise of due care for his own safety. To state the proposition another way, before a person can be permitted to recover of a municipal corporation for injury sustained by him on account of a defect in its streets, he must not only show that the defect existed and that the municipal authorities had either actual or constructive knowledge of the defects, but he must go further and show that at the time of his injury he was exercising due care for his own safety. 22 Cyc., page 1358.

The rule is admirably stated in Vol. 2 of Elliott on Roads and Streets, sec. 793. As we have heretofore said, and as it seems necessary for the sake of clearness to here repeat, cities are not insurers of the safety of their streets and alleys. They are simply required to keep them in reasonably safe condition for persons travelling in the usual modes by day and by night, and exercising ordinary care. It will be seen that all the authorities, without any exception so far as I have been able to find, hold that the municipality is liable for defects in its streets of which they have actual or constructive knowledge only when the person so using them is in the exercise of due care for his safety. City of Meridian v. Crook, 69 So. 182.

Again the appellant was charged with a higher degree of care under the circumstances than he would have been required to exercise in the daytime. He says that he was familiar with the location of this place in the daytime but he was traveling after dark and it was his duty to exercise even a greater caution after night. 28 Cyc., page 1431.

In the case of Town of Union v. Heflin, 61 So. 652, Judge COOK in delivering the opinion of the court, uses the following: "Besides all this, there is no evidence to show that plaintiff was using due care, except she was walking along the ordinary way; that she did not know of, or discover, the defect; that she was familiar with the conditions before the accident, and had not observed any case for the consideration for the jury in determining whether or not, in view of this knowledge, he was exercising the ordinary prudence at the time interpreted in the light of his knowledge. Citizens of a town are not prohibited from the use of a street or sidewalk by the mere fact that the authorities have allowed it to get into a defective condition, even when they know the street is defective; but they may continue to use the street unless its defect consists in such bad state of repair as makes the very use of the street, with the knowledge, however great the care exercised, attendant with great danger.

This is not a case where there should have been a peremptory instruction for the defendant, but it should have gone to the jury." Birdsong v. Mendenhall, 97 Miss. 547-548.

We respectfully submit that this case is a conclusive authority for our contention that the case at bar should have gone to the jury.

W. C. Sweat, for appellee.

It is conceded in the outset in this case that there was a defect in this street in the village of Burnsville and according to the record in this case that this defect had existed for some time, for several months at least, and whether or not the village authorities had had this defect called to their attention, according to the testimony, it had probably been there long enough that the village authorities would be charged with knowledge of its existence.

It will be conceded, also, that the village authorities are charged with the exercise of reasonable diligence in the keeping of its streets reasonably safe for the purpose of which said streets are devoted and for the use of persons traveling thereon in the usual and ordinary modes, either by day or night. While it is true that municipalities are charged with the duty of keeping their streets in a reasonably safe condition, it is equally true that the city will never be required to respond in damages to any perdefects in the walk which required care--all of which, in our opinion, establishes the undisputed non-negligence of the defendant."

In effect...