Thomas v. City of Lexinigton

• Decision Date: 20 November 1933
• Docket Number: 30850
• Citation: 168 Miss. 107,150 So. 816
• Court: Mississippi Supreme Court
• Parties: THOMAS v. CITY OF LEXINIGTON

150 So. 816

168 Miss. 107

THOMAS v. CITY OF LEXINIGTON

No. 30850

Supreme Court of Mississippi

November 20, 1933

Division A

1. MUNICIPAL CORPORATIONS.

Whether warnings against defects in street are sufficient is for jury, where evidence is conflicting or such that reasonable minds might arrive at different conclusions but is for court where evidence is undisputed and only inference of negligence can be drawn from proved facts.

2. MUNICIPAL CORPORATIONS.

City must exercise ordinary care to keep its streets in reasonably safe condition for use of public.

3 AUTOMOBILES.

City digging seven-foot deep excavation at curve in street and suspending two-inch plank flat side down across portion of street not obstructed by materials, to warn travelers, held negligent and liable for guest's injuries when automobile precipitated into excavation during night.

4 NEGLIGENCE.

Host's negligence in operating automobile without proper brakes and driving into street excavation held not imputable to guest, having no notice of defect in automobile or street.

5. AUTOMOBILES.

City's negligence in leaving seven-foot deep street excavation without proper warning signals proximately contributed to guest's injury when automobile precipitated into excavation during nighttime.

HON. F. F. DAVIS, Judge.

APPEAL from circuit court of Holmes county, HON. F. F. DAVIS, Judge.

Suit by Rosa P. Thomas against the City of Lexington. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

A. M. Pepper and P. P. Lindholm, both of Lexington, for appellant.

Where a, city had dug a large ditch seven feet deep and eight feet wide and thirty feet long and extending entirely across a frequently traveled street where same ran around a high embankment, and through a sharp curve, and when night came its employees left the excavation uncovered, unlighted, and unguarded and wholly without reasonable notice to a traveler in a motor car at night, but relied on a further defect and obstruction only fifteen feet from this pit-fall made by the employees by placing a heavy plank two inches thick, twelve inches wide, and eighteen feet long across the street with the small two-inch edge showing toward the approaching traveler, said obstructing plank, itself, having on it no lighted lantern or other warning, was guilty of negligence as a matter of law. A peremptory instruction against it is proper.

McWhorter v. Draughn, 137 Miss. 515, 102 So. 567; McWhorter v. Draughn, 134 Miss. 247, 98 So. 597; City of Vicksburg v. Haralson, 136 Miss. 872, 101. So. 713; Jordan v. City of Lexington, 133 Miss. 440, 97 So. 758.

The driver may assume the street is reasonably safe for travel and is not required to use extraordinary care.

McWhorter v. Draughn, 134 Miss. 247; McWhorter v. Draughn, 137 Miss. 515; Vicksburg v. Haralson, 136 Miss. 872.

The fact, if it were a fact, that Major Waugh, the driver of the automobile, could have avoided the accident by the exercise of reasonable care would not relieve defendant city from liability if the failure to have proper or sufficient barriers, watchman or warning lights was a contributing cause of the injury. Such a state of facts would simply mean that Major Waugh, the driver, and the city were joint tort-feasors and each would be jointly and severally liable for the tort, neither would be relieved from liability and the liability would be joint and several. It is sufficient that the city's negligence concurring with some other sufficient cause or causes proximately caused the injury.

Westerfield v. Shell Petroleum Corp., 161 Miss. 833; Nelson v. I. C. R. Co., 98 Miss. 295, 53 So. 619, 31. L. R. A. (N. S.) 689; Oliver v. Miles, 144 Miss. 852, 110 So. 666, 5 A. L. R. 357; Waterman-Fouke, etc. v. Miles, 135 Miss. 146; Sawmill Construction Co. v. Bright, 116 Miss. 491; Bailey v. Delta Electric Co., 86. Miss. 634.

Ruff, Johnson & White, of Lexington, for appellee.

The question of the sufficiency or adequacy of the barriers and/or warnings is purely a question for the jury.

When a municipality negligently permits all excavation to remain in its streets, unguarded by barriers or other devices to warn travelers, it is liable to anyone who falls therein while in the exercise of ordinary care, but, when a municipality has made an excavation in its streets, and erects barriers or other devices to warn travelers, the question of the sufficiency of such barriers or other devices is a question to be determined by the jury.

43 C. J., 1287, note 9; Minot v. Walton, 193 F. 768, 106 C. C. A. 466; Baltimore v. Maryland, 166, Fed. 641, 92 C. C. A. 335; Albany v. Black, 214 Ala. 359, 108 So. 49; Stockton Auto Co. v. Confer, 154 Cat. 402, 97 P. 881; Mulligan v. New Britain, 69 Conn. 96, 36 A. 1005; Koontz v. District of Columbia, 24 App. 59; Douvia, v. Ottawa, 200 111. App. 131; Garentz v. Carroll, 136, Iowa, 569, 114 N.W. 57; Lampton v. Wood, 199 Ky. 250, 250 S.W. 980; Morton v. Frankfort, 55 Me. 46; Dolan v. Jacobs Co., 221 Mass. 256, 108 N.E. 939; Brydon v. Detroit, 117 Mich. 296, 75 N.W. 620; St. Paul. v. Kuby, 8 Minn. 154; Burton v. Kansas City, 181 Mo.App. 427, 168. S.W. 889; Meek v. Nebraska Tel. Co., 96 Neb. 539, 148 N.W. 325; Corcoran v. New York, 188 N.Y. 131, 80 N.E. 660; Foy v. Winston, 126 N.C. 381 35 S.E. 609; Wells v. Lisbon, 21 N.D. 34, 128 N.W. 308; Woodward v. Bowder, 46 Okla. 505, 149 P. 138; Clamper v. Philadelphia, 279 Pa. 385, 124 A. 132; Overpeck v. Rapid City, 14 S.D. 507, 85 N.W. 990; Sweet v. Salt Lake City, 43, Utah, 306, 134 P. 1167; Welch v. Petley, 89 Wash. 254, 154 P. 145; Wilson v. Elkins, 86 W.Va. 379, 103 S.E. 118; Ptak v. Kuetemeyer, 177 Wis. 262, 187 N.W. 1000; City of Albany v. Black, 214 Ala. 359, 108 So. 49; Morgan Hill Paving Co. v. Fonville (Ala.), 130 So. 807; Brinson v. City of Mulberry (Fla.), 139 So. 792; Strickfaden et al. v. Greencreek Highway District et al., 42 Idaho 738, 248 P. 456, 49 A. L. H. 1057; 13 R. C. L. 517, note 16; L. R. A. 1917D, 756, et seq.; Higginbottom v. Village of Burnsville, 113 Miss. 219, 74 So. 133.

Only ordinary or reasonable care is required in respect of placing barriers or warnings.

Conley v. Kansas City, 110 Kan. 95, 202 P. 607; Lincoln v. Calvert, 39 Neb. 305, 58 N.W. 115; Klatt v. Milwaukee, 53 Wis. 196, 10 N.W. 162.

What will constitute such care depends upon the circumstances of each particular case. The test of sufficiency is not particularly or in all cases whether barriers or lights have been used, but whether means employed are reasonably sufficient.

Grider v. Jefferson Realty Co. (Ky.), 116 S.W. 691; Conley v. Kansas City, 110 Kan. 95, 202 P. 607; Carswell v. Wilmington, 16 Del. 360, 43 A. 169; Cody v. Boston, 154 N.E. 753; Chapman v. Boston, 252 Mass. 404, 147 N.E. 840; Compton v. Revere, 179 Mass. 413, 60 N.E. 931; Hunt v. St. Louis, 278 Mo. 213, 211 S.W. 673; Maloney v. New York, 154 A.D. 608, 139 N.Y.S. 794; Schawe v. Leyendecker (Tex.), 269 S.W. 864; Lombardi v. Bates Const. Co., 88 Wash. 243, 152 P. 1025.

It is often necessary to create obstructions in public streets, and the authorities are not necessarily negligent in so doing.

Shannon v. Council Bluffs, 194 Iowa 1294, 190 N.W. 951; Rickhold v. Niagara Falls, 213 A.D. 451, 210 N.Y.S. 676; Williams v. Main Island Creek Coal Co., 83 W.Va. 464, 98 S.E. 511.

A municipality is not an insurer of the safety of persons using the streets thereof. It is required only to exercise ordinary care to keep its streets in a reasonably safe condition for use by persons exercising ordinary care and caution.

Meridian v. Crook, 109 Miss. 700, 69 So. 182.

While the driver traveled at least one hundred feet before he ran into the excavation, he had ample opportunity to apply his brakes and stop the car, and no doubt would have done so had his car been equipped with proper brakes and lights, or on the other hand, if he had taken the precaution to look the way he was driving. A municipality is not required to take precautions to provide against such conduct on the part of persons, using the streets. In fact, no sort of precaution would avail against such negligent conduct on the part of the operator of an automobile, and we submit that under these facts it was clearly within the province of the jury to determine whether or not the negligent, conduct of the driver of the car was the sole proximate cause of the wreck.

Brinkley v. Southern Railway Co. 113 Miss. 367, 74 So. 280, 42 C. J. 872; Bufkin v. Louisville & N. R. Co., 161 Miss. 594, 137 So. 517.

Argued orally by P. P. Lindholm and A. M. Pepper, for appellant, and by H. H. Johnson, for appellee.

OPINION

Cook, J.

This is an appeal from a judgment in favor of the city of Lexington in a suit filed by the appellant against it, seeking to recover damages for personal injuries alleged to have been sustained by her, when an automobile in which she was riding was precipitated head-on into a ditch or excavation across one of the city streets.

The evidence...