Warren v. City of Tupelo

Decision Date04 March 1940
Docket Number34029
Citation194 So. 293,187 Miss. 816
CourtMississippi Supreme Court
PartiesWARREN v. CITY OF TUPELO

APPEAL from the circuit court of Lee county HON. C. L. TUBB, Judge.

Suit by S. L. Warren against the City of Tupelo for personal injuries. From a judgment for defendant on peremptory instruction, plaintiff appeals. Affirmed.

Affirmed.

Geo. T and Chas. S. Mitchell and Claude F. Clayton, all of Tupelo for appellant.

It is our contention that the very fact that a terrific cyclone had visited the City of Tupelo was sufficient, of itself, to put the city authorities upon notice that danger lurked overhead that is, that the "action of the elements" would probably bring about the very situation that was produced here.

There is no dispute but that the place where the injury occurred was a portion of one of the main streets of the City of Tupelo and was under its supervision.

A structure in a public street must be erected in such manner and of such materials as to be reasonably safe, and must be kept so. Proper repairing from time to time is as much the duty of the municipality as safe construction.

Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452.

Common knowledge, the action of the elements, and the like, is chargeable to a municipal corporation as in case of a natural person.

City of Vicksburg v. Porterfield, 145 So. 355.

Constructive notice may arise from any circumstances which should put the municipality upon inquiry and from which notice may be reasonably inferred, as where the dangerous conditions have existed for such a length of time, and under such circumstances, that the municipal authorities would necessarily have discovered them by the exercise of ordinary care. Notice of conditions from which defects proximately follow as a probable cause may be sufficient to charge the municipality with notice, and when the municipality has notice that danger to pedestrians will exist in a certain event, and then knows that the event has occurred, the law imposes at once the duties and liability which follow knowledge.

43 C. J. 1026, 1029.

A municipal corporation has been liable for injuries to a person who comes in contact with a limb of a tree negligently allowed to overhang a street so low as to constitute a danger to travelers thereon. A municipality is also liable, as a general rule, for injuries caused to travelers by the fall of a tree or a limb therefrom, where the dangerous condition was discoverable on the slightest intelligent inspection.

43 C. J. 1030, 1045.

Notice to a municipality of a defect or obstruction in its streets or sidewalks may be implied if the defect or obstruction has existed for such length of time that the municipal authorities, by the exercise of reasonable care and diligence, could have known of its existence and remedied it.

43 C. J. 1046; City of Greenville v. Middleton, 124 Miss. 310, 86 So. 804; 43 C. J. 1048, 1049, 1065; Nesbitt v. Greenville, 69 Miss. 22, 10 So. 452.

In the instant case, the undisputed proof shows that there was no system of inspection of any kind adopted., by the City of Tupelo, much less a sufficient inspection.

City of Greenville v. Middleton, 86 So. 804.

We respectfully submit that the court below erred in granting the peremptory instruction, and that the judgment should be reversed and the cause remanded.

Blair & Anderson, of Tupelo, for appellee.

Generally in order to render a municipality liable for injuries, resulting from defects or obstructions in streets or highways, which it has not itself created or authorized, it must have notice thereof for a sufficient length of time before the accident to have cured the defect and prevented the injury.

13 R. C. L. 337, Sec. 277; 43 C. J. 1040, Sec., 1819; Hattiesburg v. Reynolds, 124 Miss. 352, 86 So. 853; Butler v. City of Oxford, 69 Miss. 618, 13 So. 626; Dow v. Town of D'Lo, 169 Miss. 240, 152 So. 475.

The notice which is required in order to charge a municipality with knowledge of defects or obstructions in its streets or sidewalks may be express or implied, actual or constructive.

43 C. J. 1043, Sec. 1821.

Notice there must be to charge the municipality, but this notice may be actual or implied.

Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452.

Implied or constructive notice arises from facts from which it may reasonably be inferred or from proof of circumstances from which it appears that the defect sought to have been known or remedied, the rule prevailing in such cases requiring the exercise of reasonable care to discover the defect.

43 C. J. 1045-46, Sec. 1823.

Now it is settled law in this state, as in the majority of states, that a municipality is not responsible for every accident that may occur on its streets or highways, nor is it a guarantor of the safety of travelers thereon, or an insurer against all injury which may result from obstructions or defects therein. So far as concerns its liability for injuries caused by obstructions and defects in its streets, its duty and sole duty is to exercise only ordinary care to see that they are kept in reasonable safe condition.

Hazelhurst v. Matthews, 176 So. 384; Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452; City of Meridian v. Crook, 109 Miss. 700, 69 So. 182; McComb City v. Hayman, 124 Miss. 525, 87 So. 11; City of Natchez v. Cranfield, 155 Miss. 540, 124 So. 656; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121.

The rule is well established that the facts and circumstances of each case must determine whether constructive notice of the defect is to be attributed to the municipal authorities and ordinarily this is a question for the jury.

City of Greenville v. Middleton, 86 So. 804.

The evidence definitely establishes the fact that the limb and its condition was not an obvious or patent defect, discernible to the eye but rather was a concealed or latent defect, for according to the testimony of all the witnesses, no one saw the limb in question before it fell. Even the appellant himself, whose place of business was immediately in front of the tree from which the limb fell, and had been for some three or four years admitted that he had no knowledge whatever of the limb or its condition, even though he passed under the tree every morning and every night and sometimes during the day for all this time.

The defect in the limb (if it was a defect within the meaning of the authorities) was unquestionably a latent one, not obvious to the eye, and lacking any element of notoriety which could charge appellee with constructive notice.

Dow v. Town of D'Lo, 169 Miss. 240, 152 So. 475; Jones v. City of Greensboro, 32 S.E. 675.

As stated in the case of Hazelhurst v. Matthews, 180 Miss. 42, 176 So. 384, "There is no trouble about the governing principles of law. The difficulty comes in their application. Whether a directed verdict should be granted is always a mixed question of law and fact. It is true that the court is not called upon to decide the issue of fact one way or the other, but it is called upon to decide whether there is any issue of fact under the law to go to the jury."

To hold the City of Tupelo liable in this case would be to make every municipality in the state a guarantor of the safety of all persons using its streets and highways and an insurer against damage from any defect or obstruction in the city.

OPINION

McGowen, J.

Warren, appellant, sued the City of Tupelo, appellee, for damages for personal injuries sustained by him by reason of a limb of a tree having fallen upon his head and neck. He alleged that the city was negligent as to the limb of the tree and the maintenance of its streets at that point.

To the declaration, the city plead the general issue, and gave notice that unusual and rather peculiar conditions existed at Tupelo at the time of the accident to Warren. At the conclusion of all of the evidence, both for plaintiff and defendant, in the court below, the court granted the appellee, the City of Tupelo, a peremptory instruction, and judgment was entered accordingly. Warren appeals therefrom, and assigns as error the granting of the peremptory instruction.

On the 23rd day of May, 1936, about 9 A. M., appellant Warren was standing on the sidewalk on South Broadway Street in front of his place of business, an automobile repair and welding shop talking to a business neighbor. While so engaged, a limb fell from a water oak tree and struck him on the head and neck which painfully and seriously injured him. All of the testimony tends to show that on April 5, 1936, a most disastrous storm occurred in the City of Tupelo; and that this limb which struck the appellant had, at that time, become wrenched or twisted due to the fury of the storm, and therefore fell suddenly and without warning. The limb was good seasoned timber, was not rotten, had not been dead long, and was about fifteen or twenty feet long and about three inches in diameter in the largest part. The tree from which the limb fell was a water oak about forty feet high, two and one-half feet in diameter, and at that season of the year its foliage was thick and heavy. There was another water oak about twenty feet south of this one. These trees were growing on the land between the sidewalk and the curb of the street in front of appellant's place of business. The appellant had passed the tree daily for nearly four years and in all that time he had observed nothing strange or dangerous or out of the ordinary about it. Also, neither he nor his...

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13 cases
  • City of Montgomery v. Quinn
    • United States
    • Alabama Supreme Court
    • October 19, 1944
    ... ... the city is not liable, because it had no notice of the ... rotten limb, and relies on Warren v. Tupelo, 187 ... Miss. 816, 194 So. 293, 294. In that case the limb had been ... broken by a wind storm the month previous to the injury ... ...
  • McGinn v. City of Omaha
    • United States
    • Nebraska Supreme Court
    • June 8, 1984
    ...use of windshield inspections by scheduled police patrols. The jury found such inspection to be reasonable. In Warren v. City of Tupelo, 187 Miss. 816, 194 So. 293 (1940), the court held that there was no duty to have a regular or continued inspection of street trees and that there is no du......
  • City of Hattiesburg v. Hillman, 39386
    • United States
    • Mississippi Supreme Court
    • December 13, 1954
    ...Matthews, 180 Miss. 42, 176 So. 384. This duty extends to guarding against defects from overhead as well as underfoot. Warren v. City of Tupelo, 187 Miss. 816, 194 So. 293. It is also true that while the title to trees standing in the neutral ground is vested in the adjacent property owner,......
  • City of Meridian v. King
    • United States
    • Mississippi Supreme Court
    • February 15, 1943
    ... ... Decell, ... 175 Miss. 251, 166 So. 379; City of Hazlehurst ... [11 So.2d 831] ... v ... Matthews, 180 Miss. 42, 176 So. 384; Warren v. City of ... Tupelo, 187 Miss. 816, 194 So. 293; Brewer v. Town ... of Lucedale, 189 Miss. 374, 379, 198 So. 42; ... Birdsong v. City of ... ...
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