Town of Senatobia v. Dean

• Decision Date: 14 April 1930
• Docket Number: 28595
• Citation: 157 Miss. 207,127 So. 773
• Court: Mississippi Supreme Court
• Parties: TOWN OF SENATOBIA v. DEAN

127 So. 773

157 Miss. 207

TOWN OF SENATOBIA v. DEAN

No. 28595

Supreme Court of Mississippi

April 14, 1930

Division B

1. MUNICIPAL CORPORATIONS. Liability for injuries. Storm sewer opening. Removal by employee of highway department. Town failing to prevent employee of highway department from removing covering to storm sewer opening was responsible for resulting injury (Hemingway's Code 1927, sections 6766, 6774, 8465).

The highway department with consent of town and pursuant to authority of Laws 1914, chapter 255 (Hemingway's Code 1927, section 8465), had taken over construction and maintenance of streets within town, and employee of highway department in order to prevent overflow and damage to street was accustomed to remove storm sewer opening on account of threatened rain.

2. MUNICIPAL CORPORATIONS. Streets, alleys, and sidewalks. Jurisdiction. Surrender of authority. Reasonably safe condition. Municipality has no authority to surrender any jurisdiction or authority conflicting with its duty to keep streets, alleys, and sidewalks in reasonably safe condition (Hemingway's Code 1927, sections 6766, 6774, 8465).

Under Laws 1924, chapter 201 (Hemingway's Code 1927, section 6766), every municipality constitutes a separate road district, and Code 1906, section 3338 (Hemingway's Code 1927, section 6774), confers on municipalities full jurisdiction over streets, sidewalks, sewers, and parks.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of Tate county HON. GREEK L. RICE, Judge.

Action by W. G. Dean against the Town of Senatobia. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

E. D Dinkins, of Senatobia, for appellant.

The town of Senatobia was authorized to permit the State Highway Department to maintain Panola street and the officers and employees of that department are absolutely under its control and are in no way subjected to direction by municipal authorities. Its independence is manifest and by no system of reasoning can it be urged that a municipality should be held liable for a tort, a trespass or any other wrongful act committed by an employee of such department.

The liability recognized rests upon a failure to exercise ordinary diligence to keep streets in a reasonably safe condition for persons who prudently use them. A municipality is not a guarantor of the safety of travelers nor an insurer against all injury which may result from defects or obstructions in its streets.

A municipality is not liable for a defect caused or an obstruction placed in a street by either an independent contractor or by a stranger, of which it had no knowledge.

City of Laurel v. Ingram, 148 Miss. 774, 114 So. 881; City of Gulfport v. Sheppard, 116 Miss. 439, 77 So. 193; Dick v. Atchafayla Drainage District, 147 Miss. 783, 113 So. 893; City of New Orleans v. Kerr (La.), 23 So. 384; Howard v. New Orleans (La.), 105 So. 443; Warren v. Town of Booneville, 118 So. 290; Bradley v. City of Jackson, 119 So. 811.

J. F. Dean, of Senatobia, for appellee.

Municipalities have the nondelegable duty to keep their streets and sidewalks in a reasonably safe condition for travel over them.

Atkinson v. Decatur, 131 Miss. 707; Moore v. Duckhill, 119 So. 324.

OPINION

Anderson, J.

Appellee brought this action against appellant in the circuit court of Tate county, to recover damages for an injury received by appellee in falling into an open storm sewer, maintained by appellant on one of its streets; the ground of the action being that appellant negligently permitted the storm sewer to remain uncovered. There was a verdict and judgment in favor of appellee in the sum of five hundred dollars and from that judgment appellant prosecutes this appeal.

The court, at the request of appellee, directed a verdict in his favor on the question of liability; and refused the request of appellant for a directed verdict in its favor. That action of the court is relied on by appellant as the principal ground for the reversal of the judgment. Other alleged errors are assigned and argued, but they are so related to the main question that its decision necessarily solves the minor questions.

Strayhorn avenue and Panola street, in the town of Senatobia, intersect each other; the former running east and west, and the latter north and south. The town had caused to be constructed an opening into the concrete gutter at the northwest corner of the intersection of the two streets. This opening was into an underground storm sewer that carried off the surface waters of the streets and sidewalks, and was sixteen by twenty-two inches inside measurement, and about thirty inches deep. It was covered by an iron grating, weighing from fifty to seventy-five pounds, which was held in position by its own gravity. This opening into the storm sewer was on the west side of Panola street, at the east end of the sidewalk on the north side of Strayhorn avenue, and in a direct line of travel for pedestrians using Strayhorn avenue.

Between six and seven o'clock on the evening of November 29, 1928, the appellee was going north, in an automobile, on Panola street. Near the northeast corner of the intersection of that street with Strayhorn avenue he got out of the car, walked west across Panola street, to the northwest corner of the intersection of those streets, and while in the act of stepping from the gutter to the sidewalk on Strayhorn avenue, fell into the opening of the storm sewer, the iron grating for the opening having been removed therefrom, and was injured. He was helped out of the opening by two persons, and was unable to walk. The evidence tended to show that his injuries were rather serious.

The evidence showed, without substantial dispute that the injuries arose out of a conflict of authority between the town of Senatobia and the state highway department. Under the authority of chapter 255 of the Laws of 1914, section 8465 Hemingway's Code of 1927, with the consent of the town of Senatobia, the highway department had taken over the construction and maintenance of Panola street, as part of its system of state highways. That statute provides as follows: "Any public highway being constructed, improved and maintained under the provisions of chapter 149 o...