Maxedon v. City of Corinth

• Decision Date: 02 December 1929
• Docket Number: 28055
• Citation: 155 Miss. 588,124 So. 795
• Court: Mississippi Supreme Court
• Parties: MAXEDON v. CITY OF CORINTH

124 So. 795

155 Miss. 588

MAXEDON v. CITY OF CORINTH

No. 28055

Supreme Court of Mississippi

December 2, 1929

Division A

APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.

Action by Lyla Fern Maxedon, by her mother and next friend, Mrs. A. B. Maxedon, against the city of Corinth. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Ely B. Mitchell, of Corinth, for appellant.

A city is liable for injuries caused by defects in its streets or sidewalks of which it had notice or which it should have known of by the exercise of reasonable diligence.

Greenville v. Middleton, 124 Miss. 310; Jordan v. Lexington 133 Miss. 440; Saxon v. Houlka, 107 Miss. 161; Natchez v. Shields, 74 Miss. 871; Nisbett v. Greenville, 69 Miss. 22.

Where the defects in a street were created by the city itself in the construction of a public walk and ordinary care would have discovered these defects the city is chargeable with the notice of them.

Craver v. Jackson, 82 Miss. 583; Whitfield v. Meridian, 66 Miss. 570; Hardin v. City of Corinth, 105 Miss. 99; Meridian v. Peterson, 132 Miss. 7.

It is well settled that it is the duty of municipal or quasi-municipal corporation to erect railings or barriers along the highway at places where they are necessary to make the same safe and convenient for travelers in the use of ordinary care, and it is liable for injuries to travelers, resulting from a breach of its duty in this regard.

13 R. C. L., sec. 346, p. 421; 29 C. J., sec. 452, p. 688; Chicago v. Langless, 66 Ill. 361, 20 L.R.A. (N.S.) 683; Chicago v. Fairwell, 27 Ill.App. 526; Williams v. Leyden, 66 A.D. 490, 70 N.Y.S. 1100.

An unguarded unbarricaded walk is an invitation to go upon it.

Balcom v. Independence, L.R.A. 1917C, 120, 178 Iowa 685; Mineral City v. Gilbow, 25 L.R.A. (N.S.) 627, 80 Ohio St. 263; Prather v. Spokane, 59 L.R.A. 346, 29 Wash. 549.

Failure of a town to provide railings or barriers at dangerous places along a public highway will render the town liable for injuries thereby resulting, where the erection of such railing or barrier is a reasonable and necessary precaution to guard travelers against injury.

Molloy v. Walker Twp., 6 L.R.A. 695, 77 Mich. 449; Hutchinson v. Janson, 21 Kas. 560; Mt. Vernon v. Brooks, 39 Ill.App. 426; Hudson v. Marborough, 154 Mass. 218, 28 N.E. 147; Alger v. Lowell, 3 Allen 402.

Photographs of a location in question are admitted in evidence only when they represent as nearly as possible a facsimile representation thereof.

Kingsley v. Delaware L. & W. R. R. Co., 81 N.J.L. 536, 35 L.R.A. (N.S.) 338; 10 R. C. L., sec. 359, p. 1157; 22 C. J., p. 919, sec. 1124; Surratt v. Robinson, 50 A.L.R. 280 (Md.); Bradley v. Louis, 100 So. 324 (Ala.); Snibbe v. Robinson, 151 Md. 658, 50 A.L.R. 280.

The general rule is that the duty of municipal corporations to keep their streets in repair is not limited to repair for travelers; they are to be kept in repair as streets for all purposes to which streets may be lawfully devoted.

Chicago v. Keefe, 114 Ill. 222, 55 Am. Rep. 860; Kansas City v. Orr, 62 Kas. 61, 50 L.R.A. 783; Bath v. Blake, 97 Ill.App. 35; Waiverly v. Resor, 93 Ill.App. 649; Stenson v. Gardiner, 42 Maine 248, 66 Am. Dec. 281; Columbus v. Anglin, 120 Ga. 785, 48 S.E. 318; Gnau v. Ackerman (Ky.), 179 S.W. 217, 20 L.R.A. 570.

It is well settled that the duty owing to a child upon the highway is at least equal to that owing to an adult, and so long as the child is a traveler the municipality owes it the same duty of having the streets reasonably safe that it owes to other travelers.

13 R. C. L., sec. 303, p. 368.

The rule of nonliability extends only to children who are using the street exclusively for play, and not to children who in going from one place to another stopped to gratify their natural curiosity, or to indulge their natural tendency for sportiveness.

Owensboro v. York, 36 L.R.A. (N.S.) , 117 Ky. 294, 77 S.W. 1130; Irvine v. Greenwood, 36 L.R.A. (N.S.) 368-9; Covington Saw Mill & Mfg. Co. v. Drexillius, 120 Ky. 493, 17 Am. St. Rep. 593, 87 S.W. 266; McGuire v. Spence, 91 N.Y. 303, 43 Am. Rep. 668; Chicago v. Keefe, 114 Ill. 222, 55 Am. Rep. 860, 2 N.E. 267; Busse v. Rogers, 120 Wis. 443, 64 L.R.A. 183, 98 N.W. 219; Staub v. St. Louis, 175 Mo. 413, 75 S.W. 100; Stodd v. Philadelphia (C.), 183 F. 659; Augusta v. Thorpe, 113 Ga. 152, 38 S.E. 389; Rome v. Suddeth, 116 Ga. 649, 42 S.E. 1032; Omaha v. Richards, 49 Neb. 244, 68 N.W. 528; Indianapolis v. Emmelman, 108 Ind. 530, 58 Am. Rep. 65; Kunz v. Troy, 104 N.Y. 344, 58 Am. Rep. 508, 10 N.E. 442; Vicksburg v. McClain, 67 Miss. 4, 6 So. 774; Beaudin v. Bay City, 4 A. & E. Ann. Cas. 248, 136 Mich. 333, 99 N.W. 285, 20 L.R.A. (N.S.) 753; Collins v. Janesville, 111 Wis. 348, 87 N.W. 241; Reed v. Madison, 83 Wis. 171; Gulline v. Lowell, 144 Mass. 491, 59 Am. Rep. 102; Chicago v. Keefe, 114 Ill. 222; Birmingham v. Dorer, 3 Brewst. (Pa.) 69; Caskey v. Labell, 111 Mo.App. 596, 74 S.W. 113; Sedita v. Steinberg, 49 A.L.R. 159.

W. H. Kier and W. C. Sweat, both of Corinth, for appellee.

In order to admit photographs in evidence it is not necessary that the situation or condition should be precisely the same, but it is sufficient if the situation is substantially unchanged, and even the fact that there have been changes in conditions, will not necessarily exclude a photograph where the changes can be and are explained, so that the photograph as explained will give a correct understanding of the condition existing at the time to which the controversy relates.

22 C. J., p. 913; Le Barron v. State, 107 Miss. 633, 65 So. 648.

A city's liability for an injury to a child caused by a defect in its streets, is the same as in the case of an adult injured by such defect, while in the exercise of due care.

McComb City v. Hayman, 124 Miss. 525, 87 So. 11; 13 R. C. L., sec. 303, p. 368.

The test as to whether or not a city is negligent in maintaining its streets is whether or not the street is reasonably safe for a person using ordinary care in going over it.

Dent v. Town of Mendenhall, 139 Miss. 271, 104 So. 82; McWhorter v. Draughn, 102 So. 567; Higginbottom v. Burnsville, 113 Miss. 219, 74 So. 133; Jordan v. Lexington, 133 Miss. 440, 97 So. 758; Saxon v. Houlka, 107 Miss. 161, 65 So. 124.

If the street was not safe for ordinary travel and a child was injured while playing thereon, the city would be liable. If the street was safe for ordinary travel, and a child was injured while playing thereon, the city would not be liable.

13 R. C. L., sec. 303, p. 369; 43 C. J., p. 1074; Vicksburg v. Hennessy, 54 Miss. 391, 28 Am. Rep. 354; Meridian v. Crook, 109 Miss. 700, 69 So. 182, 9 C. J., p. 477, sec. 79.

Argued orally by Ely B. Mitchell, for appellant, and by W. C. Sweat and W. H. Kier, for appellee.

OPINION

McGowen, J.

The appellant, Lyla Fern Maxedon, a girl about six years of age, by her mother and next friend, Mrs. A. B. Maxedon, sued the city of Corinth to recover damages for injuries alleged to have been received by her as a result of having fallen off of a concrete sidewalk to the bottom of a ditch, which the sidewalk crosses, in the said city. The jury returned a verdict for the appellee, the city of Corinth, the court entered judgment thereon accordingly, and the appellant appeals to this court.

In 1926 and 1927 the city of Corinth constructed hard-surface streets, concrete gutters, sidewalks, and culverts along and over Tate street, which runs east and west across the city limits through the southern part of said city.

At the place where this child received her injury there was a creek running from north to south across Tate street near the middle of a block. The creek was about twenty feet wide at the top, and was from six to eight feet deep from the concrete walk which was constructed across it.

Before the improvements were made, there was a plank walk across this creek, which walk was about four feet wide and twenty feet long, with banisters or guardrails on either side of it. The city constructed a ten-foot concrete culvert across this street to convey the water of the ditch. Where the sidewalk crosses this creek, there were metallic cuffs, or pipes, with threads cut thereon imbedded in the concrete, reaching up two or two and one-half inches above the surface of the walk, so that metallic pipes for banisters could be screwed therein. The record shows that one of these cuffs was toward the east, another toward the west, and one in the center, and that the walk remained in this condition without the banisters being attached for several months, until on or about September 15, 1927.

In the daytime in the month of July, 1927, at about five o'clock, the mother of Lyla Fern sent her across this bridge to the home of Mrs. Brown to secure a pair of scissors belonging to Mrs. Maxedon which had been loaned to Mrs. Brown. Mrs. Maxedon saw her little girl, Lyla Fern, and a little Brown girl about the same age standing on the sidewalk over this ditch; she called to her to "hurry up" with the scissors, and the cause of action is based on this statement of Mrs. Maxedon's:

"I told her to go and get my scissors and I didn't know whether she had gone to Mrs. Brown's and was coming back or not, but I saw her with a little girl and I told her to hurry up with the scissors and she was facing Mrs. Brown's and it seemed like she staggered over something and into the ditch she went backwards."

The proof further showed that the little girl fell upon stones or pieces of concrete which were in the bottom of the ditch, or creek, and that both bones in her arm were broken. Her arm was placed in a cast, and remained in that condition about four weeks.

Mrs Brown and the occupants of her home...