Shuptrine v. Herron

• Decision Date: 25 April 1938
• Docket Number: 33107
• Court: Mississippi Supreme Court
• Parties: SHUPTRINE et al. v. HERRON

180 So. 620

182 Miss. 315

SHUPTRINE et al. v. HERRON

No. 33107

Supreme Court of Mississippi

April 25, 1938

Suggestion Of Error Overruled June 6, 1938.

(In Banc.)

1 HIGHWAYS.

Those constructing or maintaining public highways which pass through hills where deep cuts below original surface of ground are necessary are under no duty to fence or barricade such cuts so as to prevent persons or animals from falling therein from abutting property.

2. MUNICIPAL CORPORATIONS.

Municipalities are not required at expense of taxpayers to provide special means of approach or access to its streets opposite residence of every abutting property owner, but such individual entrances must be constructed by owner himself.

3 HIGHWAYS.

A party making a cut across highway or across well-defined and generally used roadway, whether public or private, or even across pathway so commonly used and so well defined as to amount to a roadway, must display lights or erect barriers or must make safe entrance from intersected road at point of intersection or so near thereto or in such manner as that those who formerly used intersected roadway or any other traveller will readily see that he is to use the new way, and same rule applies to an abandoned public highway when it is left in such condition as would likely mislead persons of ordinary prudence into supposing that it is still open to use.

4. MUNICIPAL CORPORATIONS.

As respects highway contractors' liability for injuries sustained by abutting owner who fell into five-foot deep cut created by construction of new highway in front of owner's property, contractors were not required to have foreseen every possible eventuality but only those which were reasonably foreseeable.

5 NEGLIGENCE.

"Ordinary care" of reasonably prudent man does not demand that person should prevision unusual, improbable, or extraordinary occurrence.

6 NEGLIGENCE.

"Probability" arises in law of negligence when viewed from standpoint of judgment of reasonably prudent man, as reasonable thing to be expected.

7. NEGLIGENCE.

Failure to anticipate remote possibilities does not constitute "negligence."

8. MUNICIPAL CORPORATIONS.

Contractors who constructed new highway in accordance with specifications of highway department were not liable for injuries sustained by abutting property owner who, after being awakened in middle of the night, in moment of forgetfulness ran into five-foot deep cut caused by construction of new highway which superseded old pathway, on theory that contractors should have erected a barrier in front of owner's residence where old pathway was inducted into new highway, and on level therewith within a few feet of place where owner fell, and no reasonable man would suspect that any person would ever thereafter attempt to use the old pathway.

ANDERSON and ETHRIDGE, JJ., dissenting.

HON. JOHN M. KUYKENDALL, Judge.

APPEAL from the circuit court of Panola county, HON. JOHN M. KUYKENDALL, Judge.

Action by Mary Herron against C. F. Shuptrine and others for injuries sustained by plaintiff who ran into a cut in front of plaintiff's property, which cut had been caused by defendants who were highway contractors. From a judgment for plaintiff, defendants appeal. Reversed, and judgment rendered for defendants.

Reversed and judgment for appellants.

Brewer & Montgomery and Chas A. Sisson, all of Clarksdale, for appellant, J. A. Pigford, Jr.

Contractor engaged in public work pursuant to contract with public authority is not liable in damages if the contractee would not itself have been liable under same circumstances.

Sec. 170, Constitution; Sections 4998, 5006 and 5009, Code of 1930; State Highway Co. v. Knight, 170 Miss. 60, 154 So. 263; Stephens v. Drainage Dist., 123 Miss. 884, 86 So. 641; Fitzgibbon v. Western Dredging Co., 117 N.W. 878; Sherman v. Miller Const. Co., 158 N.E. 255; Packard v. Voltz, 58 A. S. R. 396.

Contractor who follows plans and specifications for building project not liable for resulting injury due to defects in design.

Ryan v. Feeney Sheehan, 239 N.Y. 43, 145 N.E. 321; Hardie v. Boland Co., 205 N.Y. 336, 98 N.E. 661; Burke v. Ireland, 166 N.Y. 305, 59 N.E. 414; John Wannamaker v. New York, 197 A.D. 441, 198 N.Y.S. 354; Daegling v. Gilmore, 49 Ill. 248, 14 Am. Neg. Cos. 416; Curtin v. Somerset, 140 Pa. 70, 21 A. 244.

Defendant Pigford can in no event be held liable.

Cook v. Wright, 177 Miss. 644, 171 So. 686.

Plaintiff assumed the risk of the injury.

McDonald v. Wilmot, 176 So. 395.

Plaintiff did not exercise due care for her own safety.

Greenville v. Laury, 172 Miss. 118, 159 So. 121; Vicksburg v. Hennessy, 54 Miss. 39; Meridian v. Crook, 109 Miss. 700, 69 So. 182; Lovell v. Laurel, 116 So. 751; Haenel v. Meridian, 115 So. 438; Holmes v. McComb City, 121 Miss. 425, 83 So. 636; Natchez v. Cranfield, 155 Miss. 540, 124 So. 656; McComb City v. Hayman, 124 Miss. 525, 87 So. 11; Dow v. D'Lo, 152 So. 474; Yuspeh v. Mitchell, 126 So. 277; Alline v. LeMars, 71 Iowa 654, 33 N.W. 160; Shriver v. Marion County, 66 S.E. 1026, 26 L.R.A. (N.S.) 377; 29 C. J. 702, sec. 464.

The sole proximate cause for the injury was want of due care and caution on the part of plaintiff.

Meridian v. Hyde, 11 So. 108.

The Highway Commission could not have reasonably foreseen that the highway as constructed would cause some injury.

Hazlehurst v. Matthews, 176 So. 384; I. C. R. R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333.

There was no duty to warn plaintiff of the presence of the cut.

City of Hannibal v. Camel, 86 F. 297, 30 C. C. A. 63; Goodwin v. City of Des Moines, 7 N.W. 411.

Herbert Holmes, of Senatobia, and Herbert M. Fant, of Sardis, for appellant, C. F. Shuptrine.

The right to recover damages from a contractor for an injury resulting from the performance of work authorized by the state is determinable with reference to the doctrine that, insofar as he executes the work in accordance with the authority granted, he "is entitled to any exemption from liability which exists in favor of the state itself."

38 A.L.R. 442.

This is in accordance with the rule that an agent who is acting in pursuance of his authority enjoys the same immunities as the principal.

2 C. J., 826, sec. 500; 3 C. J. Sec. 130, sec. 220; A. L. I., Restatement, Law of Torts, sec. 384, page 1024.

In the case of Moore v. Swamp Dredging Company, 88 So. 522, a landowner sued the dredging contractor for damages arising out of the construction of a drainage canal. This court held that the drainage district itself would not be liable, and then added: "In this case, since the drainage district is not liable for this damage, then the contractor necessarily cannot be held liable for the doing of the work in a proper manner."

14 R. C. L. 106; Benner v. Atlantic Dredging Co., 30 A. S. R. 649.

The rule seems to be well settled that where injury results from the performance of a public contract, the contractor enjoys the same immunity as the public body.

Roland v. Jumper Creek Drainage District, 4 F.2d 719; Sherman v. Miller Construction Co., 158 N.E. 255; Salliote v. King Bridge Co., 122 F. 378.

It might appear from a casual reading of the case of Wade v. Gray, 61 So. 168, that this court has already passed upon the question involved herein adversely to our contention. A careful reading of that opinion, however, will show that such is not the case. In the Wade case, this court held a county road contractor liable for damages sustained by reason of an uncovered culvert across a county road, although the county itself could not be held liable. The uncovered culvert was a dangerous condition created in the course of the construction, while the excavation in the case at bar was a dangerous condition created as a necessary and final result of a compliance with the contract.

Taylor v. Westerfield, 69 A.L.R. 482; Hunt-Forbes Construction Co. v. Robinson, 12 S.W.2d 303; Packard v. Voltz, 58 A. S. R. 396, 94 Iowa 277.

In our research we have been unable to find any case holding a public contractor liable in connection with a permanently dangerous condition such as is involved in this case, on the other hand, we have found and have cited herein numerous authorities to the effect that a contractor with a public body enjoys the same immunity as does the public body where the dangerous condition is created as a necessary and permanent result of a performance of the contract. The conclusion is, therefore, inescapable that there is no liability on the part of the appellants in this case.

City of Hazlehurst v. Matthews, 176 So. 384; Meridian v. Crook, 109 Miss. 700; City of Greenville v. Laury, 172 Miss. 118.

Jamie L. Whitten, of Charleston, for appellee.

Momentarily forgetfulness is recognized by the law as being one of the faults of human beings and if the facts are such that a reasonably prudent person might forget, no contributory negligence may be charged by reason of such momentarily forgetfulness. The facts surrounding forgetfulness are admissible and it is largely a question of fact as to whether the surrounding circumstances are such as might cause a reasonably prudent person to momentarily forget a known danger.

City of Natchez v. Lewis, 90 Miss. 310; Mayor, etc., of Vicksburg v. Harraison, 136 Miss. 872; Meridian v McBeath, 80 Miss. 485; Birdsong v. Town of Mendenhall, 97 Miss. 544; Higgenbottom v. Village of Burnsville, 113 Miss. 219; Standard Oil Co. v. Decell, 175 Miss. 251; West v. Eau Claire, 89 Wise. 31, 61 N.W. 313; Kenyon v. Mondovi, 98 Wise. 50, 73 N.W. 314; Valparasio v. Schwerdt, 40 Ind.App. 608, 82 N.E. 923; Johnson v. Fargo, 15 N.D. 525, 108 N.W. 243; Weare v. Fitchburg, 110 Mass. 334; Maysville v. Guilfoyle, 110 Ky. 670, 62 S.W. 493; W. Ken. Tel. Co. v....