Nesbitt v. City of Greenville

Decision Date30 November 1891
Citation69 Miss. 22,10 So. 452
CourtMississippi Supreme Court
PartiesM. M. NESBITT v. CITY OF GREENVILLE

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

Action by appellant against the city of Greenville for damages caused by alleged negligence, resulting in the death of plaintiff's husband. The court below gave a peremptory instruction for defendant. Plaintiff appeals. The opinion contains a statement of the case.

Reversed and remanded.

Jayne &amp Watson, for appellant.

1. The evidence conclusively shows that the place where Nesbitt was killed was in a public street, and the city is liable. Bell v. West Point, 51 Miss. 262.

"Once a highway, always a highway." The burden of showing the abandonment of the street as such rested upon the defendant. Elliott on Roads & Streets, p. 658; Whitfield v Meridian, 66 Miss. 570. This burden was not met.

2. To constitute contributory negligence, there must be a want of ordinary care, and a proximate connection between that and the injury. 2 Thompson on Neg., §§ 1149, 1151; Whittaker's Smith on Neg., p. 373.

The presumption is that the deceased exercised due care. Going under the tank was not per se negligence. It is not shown that the danger was known or could have been apprehended. There was nothing unusual or negligent in Nesbitt's going under the tank to seek shade. If he had seated himself in the sun to sharpen his saw, the reasonable inquiry would have been, why did he not get in the shade of the tank? It is for the jury, in a case like this, to pass upon the reasonableness of the conduct of parties. The deceased did no act that caused the tank to fall, and in no way brought about the accident. In no view of the case can it be said that the negligence of the deceased was the proximate cause of the injury. Whittaker's Smith on Neg., pp. 373, 378. See also I Thompson on Neg., 165; 41 Wis. 65; 2 Strobh., 366; Murphy v. R. R. Co., 4 N.W. Rep., 81.

This is not a case in which one could see at once that deceased was guilty of contributory negligence. R. R. Co. v. Stout, 17 Wall., 657; R. R. Co. v. Van Steinburg, 17 Mich. 99; 29 F. 489; 12 At. Rep., 797; Railway Co. v. Zink, 126 Pa. 288; 45 N.W. 130; 46 Ib., 21.

Before the question of contributory negligence should have been taken from the jury, it must have been shown that deceased knew of the dangerous condition of the tank, or that the defect was palpable, or that he did not use ordinary care.

3. The city is liable for defects, and it was its duty to watch for the decay of the timbers of the tank. Elliott on Roads & Streets, 645; 55 Mich. 552; Donoho v. Vulcan Iron Works, 75 Mo. 402.

If by reasonable care the city could have ascertained the dangerous condition of the tank, it was liable, though persons passing might, not have observed the defects. 89 Mo. 226; 16 Kan. 388; 72 Ind.; 196; Vicksburg v. McLain, 67 Miss. 4.

The city authorities must take notice of the tendency of timber to decay. 67 Pa. 55; 8 Mackey, 276; Elliott, 454.

Deceased was using the street for a legitimate purpose, which was incident to the main work in which he was engaged for the city. In such case the city cannot escape liability by disclaiming its duty toward him. 114 Ill. 222; 58 N.H. 480.

It is immaterial that the tank was erected by a private citizen, since it was in the street. Elliott, pp. 477, 485. Being in the street, it was a nuisance per se. Ib., 478, 48.

Under its charter, the duty is imposed upon the city to keep the streets in a proper condition. Where the corporation omits to use reasonable diligence, knowing of the unlawful obstruction, it is no defense to an action for injuries occasioned thereby that it was not known to be dangerous. 91 N.Y. 137. Nor is it a defense that the obstruction was not in the traveled part of the highway. 36 Barb. (N.Y.), 303.

Yerger & Percy, for appellee.

1. Unless the existence of the tank at the place where located, together with its condition, made it a public nuisance, there is no ground upon which to hold the city liable. Unless an obstruction is in a public street or place Where the public frequently congregates, it is not a public nuisance. 16 Am. & Eng. Ency. L., 927.

A street is a road or public way in a city or town. Elliott on Roads & Streets, 12.

The place where the tank was located was in no proper sense a street. The tank was no obstruction to travel because there was no travel except such as the tank itself created. In determining what is a nuisance, the location of the street and all the circumstances may be considered. Woods, Nuisances, 80. The tank was not a nuisance per se, as its existence was almost a public necessity.

2. It was the defective condition, and not the existence of the tank that resulted in the injury. The city had no knowledge of the defect. Municipal corporations are only obliged to exercise ordinary care over streets. Raymond v. Lowell, 53 Am. Dec., 57.

The corporation must have notice of the defects or of facts from which the existence of the defects can be inferred. There must be circumstances from which the defect could have been known. Bell v. West Point, 51 Miss. 262; Vicksburg v. Hennessy, 54 Ib., 391.

Where the defect is caused by the municipality, or the structure is erected by it, then it is bound to take notice of such defects as ordinary skill will reveal; otherwise where the defect is caused by a third person. Elliott on Roads & Streets, 462, 463.

It is not enough to show notice merely of a defective sidewalk in the vicinity of the injury. The notice must be of the defect causing the injury. Ib.

It is not contended here that the defect which made the structure dangerous was such as the city must have known by knowing of the structure.

3. In order to recover from the municipality in a case like this, the injured person must be perfectly free from contributory negligence. 53 Am. Dec., 57. And he must have been using the street in the usual way for travel. 51 Miss. 262; 54 Ib., 391.

If the exercise of ordinary care would have acquainted the city with the defect, a skilled mechanic should have known of the same. The degree of care which would charge the city with knowledge, charges him with contributory negligence.

4. If we grant that the tank was in a public street, the city is not liable. It is not an insurer against accidents. It is sufficient if the streets are in a reasonably safe condition for traveling in the ordinary mode. 2 Dill. on Mun. Corp., § 1019; 9 Am. & Eng. Ency. L., 378.

It has even been held, in regard to highways, that any other use of them than for the purpose of passing and repassing makes a person so using them a trespasser. Elliott on Roads & Streets, § 309.

Where the use made of the street is one that reasonable prudence could not have anticipated, there is no duty on the municipality in reference to it. 9 Am. & Eng. Ency. L., 398.

Inroads have been made upon the doctrine above stated in favor of children going upon streets for air and exercise; but, even as to children, where they are using the street merely for play, there can be no recovery for injuries due to defeats or obstructions. 9 Am. & Eng. Ency. L., 400, and note.

If a mechanic, carrying on his business in the middle of a public street, can recover for injuries inflicted under the circumstances shown here, vagrants turning the water out of the tank and adopting it as their domicile could require the city to keep it in good repair.

Argued orally by H. C. Watson, for appellant.

OPINION

WOODS, J.

There is much evidence in the record tending to show that the highway at the point where plaintiff's deceased husband received his injuries was a public street in Greenville, and we have no reason to suppose that the peremptory instruction of the court below had any relation to this phase of the case.

Let us examine, briefly, the evidence which was offered for the purpose of showing negligence in the municipality in permitting an obstruction for a long while in the public street--an obstruction, as it now appears, which was dangerous to persons passing along or using such street.

The obstruction was erected by one Pace about two years before the injury complained of occurred. Whether erected by the permission of the municipality does not appear from the record; but this is not important, since the city's...

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