Mayor And Aldermen of City of Vicksburg v. Harralson

• Decision Date: 17 November 1924
• Docket Number: 24238
• Citation: 101 So. 713,136 Miss. 872
• Court: Mississippi Supreme Court
• Parties: MAYOR AND ALDERMEN OF CITY OF VICKSBURG v. HARRALSON [*]

101 So. 713

136 Miss. 872

MAYOR AND ALDERMEN OF CITY OF VICKSBURG v. HARRALSON ^[*]

No. 24238

Supreme Court of Mississippi

November 17, 1924

(En Banc.)

1. MUNICIPAL CORPORATIONS. City's installation of bumper at street intersection held negligence,

City has no right to place in its street, for purpose of warning drivers of danger of street intersection, "bumper" constituting a dangerous device or obstruction which an automobile driver, even In use of ordinary care, may not see and by which a driver, who has no knowledge thereof, or who through momentary forgetfulness, or distraction of attention elsewhere, does not stop or reduce speed of car, is injured though driving at a reasonable rate of speed, and installation thereof is negligence.

2. MUNICIPAL CORPORATIONS. Automobile driver may assume street is reasonably safe.

Automobile driver may assume that street is reasonably safe for driver and is not required to use extraordinary care.

3. MUNICIPAL CORPORATIONS. Federal government's use of bumper not conclusive as to reasonableness of bumper installed by city.

Use by United States government of bumpers, consisting of gravel elevations, in National Park to warn automobile drivers of dangers, held not conclusive as to reasonableness of bumper installed by city at street intersection.

ANDERSON and ETHRIDOB, JJ., dissenting.

HON. E L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Action by Dr. H. H. Harralson against the mayor and aldermen of the city of Vicksburg. Judgment for plaintiff, and defendants appeal. Affirmed.

Judgment affirmed.

Anderson, Vollor & Kelly, for appellant.

In the regular course of the business affairs of the city of Vicksburg, the mayor and aldermen of said city deemed it necessary for the public safety, after Mulvihill and Drummond streets were to be paved, to install on Drummond street fifty-four feet south of the southeast corner of Drummond and Mulvihill streets, a "bumper," in order to warn automobile drivers of the dangers at this street intersection. This act of the city officials was done in the exercise of a governmental duty for which the city cannot be made liable for any damage resulting directly and proximately from placing the bumper in Drummond street, which was regarded by the officials as a dangerous point. Arronson v. New Haven, 12 A. L. R. 328.

In the exercise of this governmental duty to safeguard life and property, the proper authorities had the right to adopt some plan to warn automobile drivers of the dangerous condition at this street corner, and it cannot be reasonably argued that the placing of this slight obstruction in this street for the praiseworthy purpose of protecting human life and human limbs is negligence for which the city can be held liable in damages.

The appellant contends here as we did in the court below that the placing of the bumper in Drummond street as a means of public safety did not constitute a nuisance for which the city would be liable, and that upon the facts adduced upon the trial the appellant instead of the appellee was entitled to a directed verdict from the court. Messenger v. Bridgeport, 31 Can. S. C. 379; Affirmed in 33 Can. N. S. 291.

The right of the public to use a street is subject to such reasonable and necessary limitations as the city may impose upon it, and as long as an obstruction placed upon a street is temporary and reasonable in its character, and is intended for public safety and convenience, its existence furnishes no cause for complaint. 44 Am. Rep. 339. As a general rule slight obstructions in a street or highway for the sake of general convenience and business does not render a municipal corporation liable for a resulting injury. 47 A. 161. And where obstructions placed in a street constitute a necessary incident to the use of the street for the purpose authorized by law, or where they are intended for the protection of the general traveling public, they do not constitute a nuisance. Seibert v. Missouri R. R. Co., 188 Mo. 657; 70 L. R. A. 72.

A pavement may have become uneven from use, or that bricks therein may have become lose or misplaced by the action of the elements, so that persons are liable to stumble or be otherwise inconvenienced in passing, does not necessarily involve the municipality in liability for resulting injury, so long as the defect can be readily discovered and easily avoided by persons exercising due care, or provided the defect be of such nature as not of itself to be dangerous to persons using the walk. Gosport v. Evans, 112 Ind. 133, 13 N.E. 256, 12 L. R. A. (N. S.) 916.

The decision of the city authorities on the question is conclusive and cannot be reviewed by the courts. Connelly v. City of St. Paul, 72 N.W. P. 1073. The city, when it assumes to construct sidewalks, engages to do so in a reasonably safe manner, affording pedestrians reasonably safe conditions of travel; they at the time using due caution. The rule is fairly stated in Dill. Mun. Corp., sec. 1019.

The defendant gave notice to the plaintiff in the court below, under the general issue, that it would undertake to prove, and would prove, that bumpers were used in the Vicksburg National Military Park around Vicksburg; that they were used on the highways between Vicksburg and Jackson, and on other highways in Mississippi; that they were used on highways in other states. The plaintiff in the court below moved to strike from the notice thus given such parts of the notice that referred to highways outside of the city of Vicksburg. The court sustained the motion to strike out, and under this ruling the defendant in the court below was denied the opportunity to show that bumpers were used outside of Vicksburg on public highways and on public highways in other states of the Union. This was a material inquiry and necessary for the defense to show that the plan adopted by the Vicksburg authorities was a proper plan, a reasonable plan, and one that prudent men might approve, and if for no other reason the action of the court in not permitting the defendant in the court below to make this proof, this case should be reversed, and a new trial awarded. Gould v. Topeka, 32 Kan. 485, 49 Am. Rep. 496, 4 P. 822; Madison v. Ross, 3 Ind. 236, 54 Am. Dec. 481.

The city is not bound to maintain an even or proper grade of its streets and pavements. Gosport v. Evans, 112 Ind. 123, 13 N.E. 256; Blythe v. Waterville, 57 Minn. 115; Dubois v. Kingston, 102, N.Y. 219, 55 Am. Rep. 804, 6 N.E. 273; Teager v. Flemingburg, 53 L. R. A. 791. It was a grievous error in the court below, under the testimony of Dr. Harralson and the testimony in reference to the photographs, to give a peremptory instruction to find for the plaintiff. Dr. Harralson's testimony shows that he was not exercising the ordinary care and caution that he should have exercised in driving his automobile. The best case that can be made out of his testimony is that he did not see the warning sign or the bumper itself. Lauson v. Fon du Lac, 25 R. L. A. (N. S.) 40; Raymond v. Sauk County, L. R. A. 1913F. 425. Under such facts this alleged accident could not have happened if Dr. Harralson had exercised the slightest care in driving his automobile and no recovery can be had. Siebert v. Mo. P. R. R. Co., 7 L. R. A. 72; sec. 133, Berry on Automobiles; West Construction Co. v. White, 130 Tenn. 520. In the case of Arronson v. New Haven, 94 Conn. 690, 12 A. L. R. 328, and note; 110 A. 872, the court held that "the mere placing by a city of so-called silent policeman at the intersection of two streets without fastening or anchoring it, and with knowledge that it is liable to be displaced so as to become a dangerous obstruction to traffic is not negligence which will render the city liable for injury through a vehicle colliding with it after it has been displaced." 12 L. R. A. note p. 339.

The court ruled that because the jurisdiction of the National Military Park road had been ceded by the state to the United States, and because the city had no jurisdiction over the park roads, that no proof of the use of bumpers could be made by the defendant. No reason was assigned by the court for the exclusion of testimony that bumpers were used on other roads in the state and in other states in the Union. We are unable to understand why the ceding of the jurisdiction from the state to the United States should preclude such testimony from consideration. Testimony of the use of bumpers in the National Military Park road was offered in the first place to show that Dr. Harralson was familiar with their use and that he had prior to the time of his alleged injury experience in using them, and that he knew how to pass over them with safety, and in the second place to show that the use of bumpers on Dummond street was not a jumped up plan of the city officials, and that it was not of their own make, but that if was a general plan adopted by prudent men in charge of highways, not alone in the National Military Park, but on highways in Mississippi and in other states in the Union.

For the reasons assigned in the decisions of the courts above cited, the testimony offered should not have been excluded by the court because it was essential, material and competent for the defense in this case.

Brunini & Hirsch and Jas. D. Thames, for appellee.

The city simply took the law into its own hands. It was a deliberate act designed to punish people physically, or to damage their motor vehicles, should they for any reason disregard the presence of the bumper. As we shall presently see this was holding the citizens using the street to a greater degree of care than the law imposed. Appellant contends that the city in putting this obstruction in Drummond street was exercising...