McComb City v. Hayman

Decision Date14 February 1921
Docket Number21323
CourtMississippi Supreme Court
PartiesMCCOMB CITY v. HAYMAN ET AL

1. MUNICIPAL CORPORATIONS. Must use ordinary care to keep streets in reasonable safe condition.

It is the duty of a municipality to use ordinary care to keep its streets in a reasonably safe condition for persons using ordinary care and prudence.

2. MUNICIPAL CORPORATIONS. Liability for injury to child by defective street same as in case of adult.

The liability of a municipality 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.

3. MUNICIPAL CORPORATIONS. Under no duty to guard gully near street when not in dangerous proximity thereto.

A municipality is not required to keep the entire width of its streets open and safe for travel, provided the portion thereof set apart for travel is wide enough to be safe, and it is charged with no duty to fill up or guard a gully that may be near a street unless in such close proximity thereto as to be dangerous to a traveler passing along the street and using ordinary care.

4 NEGLIGENCE. Attractive nuisance artificially created.

In order for a thing dangerous to children to come within the attractive nuisance doctrine, it must have been artifically created.

HON. D M. MILLER, Judge.

APPEAL from circuit court of Pike county, HON. D. M. MILLER, Judge.

Action by H. A. Hayman and others against McComb City to recover for wrongful death. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

Reversed.

Justin J. Cassidy and W. B. Mixon, for appellant.

It seems to us that the issue squarely made in this case, is should city authorities be compelled, at the expense of the city, to safeguard its streets, sidewalks, and drainage, both natural and artificial, so as to permit children who have just learned to walk to go hither and thither alone, unprotected upon the streets of the city and that parents may recover regardless of the care which they should exercise to protect their offspring. From the instructions given the plaintiff, it seems that this case was tried on the theory that the city passively allowed an attractive nuisance to exist in the street or near to it by allowing flowers to grow on the banks of the drain which attracted the young child.

In the discussion of the city's duty in regard to streets, this question naturally arises. How much of the street as shown on the map of the town must be kept open, unobstructed, free from defects and in a reasonable state of repair? When a town or city is laid off, the plot or map shows squares or blocks, lots and streets throughout the entire area of territory sought to be incorporated. The town commences to build usually near the center and the streets are opened, cleared and put in use as the population demands. As the town expands, new streets are opened and used of varying widths consistent with demands of travel and population. Near the center of business districts the demand for travel is such as to force a dedication and use of a street from curb to curb, while as the distance grows from the center and the demand decreases, mere roadways, paths and trails serve the purpose of travel, in what, on the map of the town, may show a street sixty or eighty feet in width. These streets gradually widen with the growth of the town as the authorities take cognizance of the demand and put same in such condition and to such width as in their judgment is reasonably necessary to invite the public to use. It is a matter of common observation that in every town within this state, though on the map, streets are shown to be from forty to one hundred feet wide, yet in a great number of these streets the public is only invited to use, both by custom, and condition, a width varying from ten to thirty feet. It is our contention that it is this portion of the street which must be kept unobstructed and in reasonably safe condition for the use as above set forth.

This court has recently decided in the case of G. & M. C. Trac. Company v. Manual, 85 So. 308, where a municipal street was thirty-seven feet wide and the city kept seventeen and seven tenths feet of said street open for a traveled way for vehicles, in good condition that it might allow the obstruction of a guy wire and trolley poles of a railroad company to occupy the street three and one-half feet from the traveled way. It is also a matter of common observation that in a great number of instances it is impractical and impossible owing to natural conditions for a city to open up every street and every part of a street for travel especially where streams and natural drains invade the area alongside or across the streets.

Where a street had been opened and worked, and the public invited to use it, from curb to curb, it stands to reason that the authorities must maintain the entire street in a reasonably safe condition free from obstructions, excavations or defect liable to injure persons in the reasonable use of the street. The authorities must anticipate that every portion of the width of a street is open, then can it be said that the authorities must anticipate that perchance some one will wander into and be injured in the unused portion of the street, to which no invitation has ever been extended by reason of any act of the municipality. In taking this position we do not conflict with the case, Higginbottom v. Village of Burnsville, 113 Miss. 219, for, in that case, the accident occurred in that portion of the street which the public had been invited to use. The authorities had not only opened the street at that point, but had built a culvert or bridge and they, by sheer neglect, allowed not only the bridge but the traveled street to get impassable.

We do not conflict with the case of City of Natchez v. Lewis, 90 Miss. 319, for in that case there is no contention but that the city had provided the sidewalk for the public and allowed it to get out of repair. The same can be said of Birdsong v. Mendenhall, 97 Miss. 547, and Pascagoula v. Kirkwood, 86 Miss. 630, and a great number of other cases along this line. Now taking this view, could a grown person, walking along, even in the nighttime, leave the traveled way and after trudging through the grass, weeds and vines, come to this hole of water, fall in and be injured and recover as a matter of law even though the authorities could have drained the place? We think not.

It is laid down in Ruling Case Law, vol 13, pages 368 and 369, that in case a child rightfully in the highway is injured by a defect therein, the liability of the city is precisely the same as in the case of an adult who is injured while free from fault from a like cause citing 58 Am. Reports, page 65, and that in estimating the degree of carelessness with which the city is chargeable in all cases of this sort, the character of the obstruction is to be considered with reference to the proper uses of the street as a thoroughfare of travel and not as a place for the recreation of children, and the liability depends upon whether the street is reasonably safe for ordinary travel. In determining whether a defect is in such close proximity to the highway as to render it unsafe, that proximity must be considered with reference to the highway "as traveled and used for the public travel," rather than as located. In the case of Arnold v. St. Louis, 75 Am. St. Rep. 417, it was held that a city was not liable for the death of a child from drowning while skating on an unenclosed pond in the street. This case is good authority for appellant on several phases of the case at bar.

We call the court's attention to the rules announced in the following leading cases from other states, which seem to be applicable to the case made by the record here. Smith v. City of Rexburg, Ann. Cas. 1915B, page 276; Harrodsburg v. Abram, 138 Ky. 157, S.W. 758, 29 L. R. A. (N. S.) 199; Clark v. Manchester, 62 N.H. 577; Schauf v. Paducah, 106 Ky. 228, 50 S.W. Am. St. Rep. 220; Arnold v. St. Louis, 152, Mo. 173, 53 S.W. 990, 75 Am. St. Rep., 447, 48 L. R. A. 291; Dehanitz v. St. Paul, 73 Minn. 385, 76 N.W. 48; Smith v. Rexburg, Ann. Cas. 1915B, page 276; Knowlton v. Augusta, 84 Me. 572, 24 A. 1039; Lineburg v. St. Paul, 71 Minn. 245, 73 N.W. 723; Grant v. Fitchburg, 39 Am. St. Rep. 449.

Municipalities are not corporations operated for profit, but are sub-divisions and a part of the general government, and the only reason which can be assigned as to why they should be held liable for personal injuries, and counties and other sub-divisions exempted, is probably because the governing authorities are closer in touch with the affairs of the municipality, and thereby the citizenship is held to a more strict account for the performance of the duties of the governing officials.

Yet, it is unreasonable and an injustice to them to hold them liable for the result of a condition which they could not have anticipated. This court has frequently held that the city is not an insurer of the safety of those who travel its streets, but should only exercise reasonable care to keep such streets in a condition that would prevent accident or misfortune to persons using same in the usual way, and for the purpose for which they are dedicated.

It may be, and probably is, that no one is to blame for this unfortunate occurrence and that this case comes under the rule announced in Thompson's Commentaries on the Law of Negligence, vol. 1, page 316, in which it is said that there is a considerable class of cases where negligence cannot be charged to the parents of a child or to the defendant but must be ascribed to accidents and misfortunes that are attendant upon child life, and others are not...

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