Jackson v. City of Greenville

• Decision Date: 22 October 1894
• Citation: 72 Miss. 220,16 So. 382
• Court: Mississippi Supreme Court
• Parties: D. D. JACKSON v. CITY OF GREENVILLE

16 So. 382

72 Miss. 220

D. D. JACKSON v. CITY OF GREENVILLE

Supreme Court of Mississippi

October 22, 1894

FROM the circuit court of Washington county. HON. R. W WILLIAMSON, Judge.

The opinion states the case.

Affirmed.

Jayne &amp Watson, and S. Akin, for appellant.

(1) The place where appellant was injured was a sidewalk dedicated and maintained for public use; (2) it was in a defective condition; (3) the city had actual or constructive notice of its condition; (4) appellant was injured while on the sidewalk; (5) its defective condition caused his injuries. Appellant proved these facts, and thus made out his case and, as appellee introduced no affirmative matter of defense, it was error to direct a verdict for defendant. We assent to the justness of the rule that denies liability where there is a misuser of a street for unlawful purposes, but the trend of modern authorities is towards placing a more liberal construction Upon the uses to which streets and highways may be put. In cities and towns streets and parks are necessary for the diversion of the inhabitants. It would be as reasonable to hold that a man walking with his children for pleasure and playing with them in his walks along the streets and sidewalks is not entitled to reasonable protection, as to hold appellant disentitled to recovery here. The city owes the same duty to children at play in the streets as it does to travelers on business. 114 Ill. 222; 108 Ind. 530. A person stopping to see a procession does not cease to be a traveler. 58 N.H. 430. So a pedestrian stopping to tie his shoes on a doorstep. 52 Md. 517. And so a traveler stopping to pick berries. 107 Mass. 347. At the moment of the accident plaintiff was seeking to catch his dog, which had escaped from him. Had the dog been in a remote part of the city, and appellant started on his journey to secure him, would anyone question that appellant was properly on the sidewalk? The court should not enter upon such refinement as to divide the quest for one's property into steps and fractions of steps, so as to hold that the distance covered in the journey was not sufficient to recovery. If one is actually using a street in going from one point to another, although the distance be very inconsiderable, he should be regarded as a traveler. 58 N.H. 430; 145 Mass. 91; 47 Ala. 45. See, also, Elliot on Roads & Streets, 474.

J. H. Wynn, for appellee.

Municipalities are liable only to travelers, and those going upon the streets and sidewalks, for the purposes for which they are intended. Dillon on Mun. Cor. (4th ed.), §§ 1015, 1017. One going upon them solely to engage in play, and injured while at play, cannot recover. 90. Mass. 240; 119 Ib., 472; 144 Ib., 491; 67 Maine, 167; 75 Mo. 401. It is not contended that one who goes upon the sidewalk for the purpose of travel, and, while thereon, becomes engaged in play, or that a traveler Who stops for legitimate purposes so far loses his character as a traveler as to be barred of recovery, but that one who goes upon the streets for the sole purpose of playing thereon, and is injured while engaged in such play, cannot recover. The municipality owes him no duty.

OPINION

WOODS, J.

This action was brought by the appellant for the recovery of damages for injuries sustained by him in consequence of defects in a sidewalk in the city of Greenville, negligently suffered to exist. To the declaration filed, appellee interposed the plea of the general issue, and gave notice thereunder, (1) that the injury complained of was the result of plaintiff's own negligence; and (2) that, at the time of the injury, and for a reasonable time before, the defendant city had exercised and exhausted all its powers, Under the law, to raise money for the repair of its streets, and that all its funds were, at the time mentioned, exhausted. After all the evidence on both sides had been introduced, at the request of appellee, the court instructed the jury, peremptorily, to find for the defendant city, and, from the judgment of the court following such instruction, this appeal is prosecuted.

We shall disincumber our consideration of the appeal by omitting any reference to the notice of exhaustion of power and funds on the part of the municipality, as no evidence to support it was offered, and by omitting any discussion of the question of the contributory negligence of the appellant, and confine ourselves to this single question--viz.: Was the appellant, at the time of receiving the injury, making Such use of the street and sidewalk as will entitle him to a recovery for hurt suffered by reason of defects in the sidewalk?

It is elementary law that streets are primarily designed to be used for purposes of transportation and travel, and the authorities are uniform to the effect that, in the absence of any express statute creating liability, municipal corporations, clothed with plenary and exclusive control over their streets, are yet liable, by implication, for injuries resulting to persons properly using such streets, for failure to maintain the same in a reasonably safe condition for travel. That the rule, as stated, is substantially recognized and applied by the courts in cases of statutory and of implied liability, will appear by examination of the adjudications of courts of last resort in both classes, and any seeming want of harmony will, in most instances, appear to have arisen from failure to confine the language of the several courts to the facts of the particular case.

What are the facts, as shown in the evidence introduced on trial below by the appellant, which are supposed by counsel for appellee to bar any recovery herein? We quote from the testimony of the appellant: "The accident occurred in this way: I had a puppy there, and I took the puppy out on the sidewalk, and was playing with him, and he jerked loose from me, and I made a step to catch it, and my foot slipped into one of those cracks, and jerked me down, and, before I could recover, the plank flew up and struck me on my leg. My foot was fastened in the crack. It was my right 'foot in the crack. I had my left foot on the ground, and I jerked my right foot up, and the plank flew up and struck me on the left leg. It produced a compound fracture of my leg."

On cross-examination, the appellant said: "I was playing with a dog when the accident happened. I went out to the sidewalk. I had a pointer puppy there, and was playing with it. It tried to get away from me, and my foot slipped off the plank and went into the crack, and, in reaching over, I tried to pull my foot out, and the plank flew up and struck me on the leg. My leg was broken. . . The plank ran on the walk crosswise. My foot was caught crosswise. . . Was Standing rather crosswise; was not walking along when the accident occurred; was playing with the dog; was going nowhere. My face was turned toward the fence--turned south. The dog was running between me and the palings, and I stooped to catch him, and my foot slipped."

The case thus presented is that of a man of full age using the sidewalk, not for the...