Whitfield v. City of Meridian

• Decision Date: 20 May 1889
• Court: Mississippi Supreme Court
• Parties: ANNIE KATE WHITFIELD v. THE CITY OF MERIDIAN

6 So. 244

66 Miss. 570

ANNIE KATE WHITFIELD v. THE CITY OF MERIDIAN

Supreme Court of Mississippi

May 20, 1889

April 1889

FROM the circuit court of Lauderdale county, HON. S. H. TERRAL Judge.

Appellant sued the city of Meridian for damages on account of an injury received by her in consequence of a defect in the sidewalk of one of the public streets in the city. The declaration contains two counts. In one it was alleged that the city carelessly and negligently graded the streets known as 13th street and 24th avenue, so as to make the place where the injury occurred dangerous. The other count alleged that said streets, at the point of intersection, were in an unsafe and dangerous condition, and that the city negligently permitted them so to remain, in total disregard of the rights of all persons using them.

Defendant pleaded the general issue, and under it gave notice that evidence would be offered to show that plaintiff by her own negligence, contributed to the injury; "and that the city did not have any funds, during the time said place was said to be out of repair, and where said injury is said to have occurred, with which to repair said place, the said city having expended all of its funds on the streets of said city."

On behalf of plaintiff the testimony showed that on the night of the 17th of March, 1887, the plaintiff, a young lady, was walking with a gentleman escort along the sidewalk on 13th street, when they came to its intersection with 24th avenue and were suddenly and unexpectedly precipitated over an embankment and fell a distance of five or six feet, whereby plaintiff's ankle was broken. The place was some distance from the home of plaintiff, and neither she nor her escort knew of the danger. The street was remote from the business portion of the city and was not much traveled or was not used by a great many persons. But it was within the corporate limits, was known and recognized as one of the public streets of the city, was indicated on maps and profiles used by the city authorities, and, while it had never been accepted by formal adoption, it had been worked by the city, and had been used for many years as a public highway. Plaintiff offered in evidence certain maps and profiles of the grades of streets of the city, with the view of establishing that the place of the injury was at the intersection of two recognized public streets; but, because the plaintiff was unable to show any formal adoption of the maps by ordinance, the evidence was excluded. By reason of the difference in grade, one street was higher than the other, and the sidewalk on 13th street ended abruptly at an embankment which was walled up by plank and the plaintiff, without warning, stepped over this embankment. There was no railing, nor anything to give notice of the danger. The streets were originally graded at this point and left in the condition stated by an adjacent owner who made the sidewalk and planked up the embankment where the injury occurred five or six years before plaintiff was injured.

The evidence for defendant showed that the city had no funds for street purposes before and at the time of the injury; that the money raised for this purpose by taxation, and five thousand dollars borrowed money besides, had been exhausted, and hence the city had no means to repair the street in question. The evidence as to this did not show that the city had exhausted all its power to raise money by taxation, and its power to enforce contributions of labor for street purposes. It was also shown that 24th avenue was uninhabited north of where the injury occurred; that very few persons lived in the vicinity of the accident on either street, and that the means of the city had been used in opening, grading, and repairing streets in other portions of the town where the streets were very much more needed and were more generally used. It was further shown that there were a great many other places in the city where work was as badly needed as at the place in question; that there were a number of streets and walks in the city that had never even been opened; that the street commissioner worked in the populous parts of the city, where the demands of the public required it, and went as far as the resources enabled him to go. Plaintiff objected to the introduction of this evidence, and the objection was overruled. Verdict and judgment for defendant. A motion for a new trial was overruled, and plaintiff appealed.

Judgement reversed and cause remanded.

Miller & Baskin, for appellant.

1. The uncontroverted fact is that the place where the injury occurred was in a dangerous condition, being either made so by defendant or suffered to remain in such condition after it should have been known. The evidence conclusively shows that this place was on one of the public streets of the city. Brusso v. Buffalo, 90 N.Y. 679; 46 Am. R. 123; Dill on Mun. Cor., § 1009; Morrill on City Neg. 66; New York v. Sheffield, 4 Wall. 189; Rehberg v. Sheffield, 4 Wall. 189.

2. The court erred in allowing testimony to go to the jury that other streets in the city were dangerous and equally in need of repairs as the one in question. Defendant was not absolved from duty as to this street because others were in need of repair. It has assumed control of all the highways in the city, and it has very extended powers of taxation for street purposes under the charter. For this reason, it was also erroneous to admit testimony that the street in question was in a sparsely settled part of the town; this was no defense to the action.

3. The public may use all the streets of the city. If they could not be made safe for travel, guard-rails, or some means of warning travelers of the danger should have been provided. This was a trap. Bunch v. Edenton. 90 N.C. 431; Wilson v. Atlanta, 63 Ga.; Kenyon v Indianapolis, 1 Wil. (Ind.) 139; Moody v. Osgood, 54 N.Y. 488; Hayes v. Cambridge, 138 Mass. 461; Rugles v. Nevada, 63 Iowa 185.

The fact that the city had no light at the dangerous place is negligence. Indianapolis v. Scott, 72 Ind. 196; Morrill on City Neg. 199.

Municipal corporations having the powers ordinarily conferred upon them as to streets, owe to the public the duty to keep them in a safe condition for use in the usual mode by travelers, and are liable for injuries resulting from neglect to perform this duty. Bell v. West Point, 51 Miss. 287; Dill on Mun. Cor., § 1027; Barnes v. Columbia, 91 U.S 540; Bassett...