Yazoo City v. Loggins
Decision Date | 13 December 1926 |
Docket Number | 25873 |
Citation | 145 Miss. 793,110 So. 833 |
Court | Mississippi Supreme Court |
Parties | YAZOO CITY v. LOGGINS. [*] |
Suggestion of Error Overruled Jan. 24, 1927.
APPEAL from circuit court of Yazoo county, HON. W. H. POTTER, Judge.
Action by T. A. Loggins against Yazoo City. Judgment for plaintiff and defendant appeals. Affirmed.
Judgment affirmed.
J. G. Holmes, for appellant.
I. The evidence affirmatively shows that the city was free from any negligence. "Municipalities are required to exercise only ordinary care to keep and maintain their streets and sidewalks in a reasonably safe condition." Vicksburg v. Hennessy, 54 Miss. 391; Meridian v. Crook, 109 Miss. 700; Hinginbottom v. Burnsville, 113 Miss 219; McComb City v. Hayman et al., 124 Miss. 525.
"Municipalities are not insurers of the safety of their streets and sidewalks." Higginbottom v. Burnsville, 113 Miss. 219. "If a suitable warning has been erected by a third person in the performance of the work, it relieves the municipality from the necessity of taking a like precaution, and the municipality may avail itself in its defense of the warning placed by the author of the danger, or others." 6 McQuillin, Municipal Corporations, section 2802; Stockton Automobile Co. v. Confer, 154 Cal. 402, 97 P. 881; Kansas City v. Birmingham, 45 Kan. 212, 25 P. 569; Walker v. Ann Arbor, 111 Mich. 1, 69 N.W. 87.
"Generally a plain warning by the use of a red light is sufficient, without barricading a street so as to preclude injury." 6 McQuillin, Municipal Corporations, page 5714; Karrer v. Detroit, 142 Mich. 331, 106 N.W. 888.
II. The jury on their voir dire examination were improperly informed that the city was insured against liability. 36 C. J., page 1128; Herrin, Lambert & Co. v. Daly, 80 Miss. 340; Stratton v. C. H. Nichols Lbr. Co., 39 Wash. 322, 109 A. S. R. 881, 81 P. 831; Hoyt v. Davis Mfg. Co., 112 A.D. 755, 98 N.Y.S. 1031; Mithen v. Jeffrey, 259 Ill. 372, 103 N.E. 778.
III. It was error to admit the opinion evidence of appellee's witness, Jack Manning. In I. C. R. R. Co. v. Short, 113 Miss. 272; R. R. Co. v. Spencer, 72 Miss. 502; and Merchants' Wharf Boat Ass'n v. Wood et al. (Miss.), 3 So. 248, the supreme court of Mississippi has condemned opinion evidence where the witness is not shown to have been qualified by reason of some superior expert knowledge or observation, or experience.
IV. It was error to admit the hearsay testimony of appellee's witness, J. W. Willoughby, as to statements made by L. A. Underwood.
V. The verdict of the jury is excessive. The injuries which appellee sustained were to his right leg. About thirteen years prior to the accident involved in this case, appellee's right leg had been amputated several inches below the knee, as a result of injuries sustained while an employee of the A. & V. Railroad Company at Vicksburg. Six years after these injuries were sustained, he had a second operation as a result of his previous injuries. During the period of thirteen years he had been using an artificial limb. The injuries in this case resulted in a fracture of the leg above the knee.
The doctor who made the X-ray examination of the leg, while denominating the injuries as permanent, says that he would not state that the plaintiff would be for all time incapacitated. He states further that in his opinion the appellee might resume the use of the artificial limb, although he states that it might give him some discomfort.
Watkins, Watkins & Eager, also, for appellant.
The court erred in refusing to grant the directed verdict requested by defendant. The rule is too elementary to require the citation of authority that a municipality is not an insurer of its streets but is liable only for the failure to use ordinary or reasonable care and precaution in respect to the same. As we view the testimony of this case, the only theory upon which it can be said that the case should have been submitted to the jury would be that a municipality is an insurer against injuries sustained on account of defects in its streets or sidewalks. This is clearly not the rule but the municipality is required to exercise only ordinary care in the guarding or warning of dangerous places.
The learned trial court overlooked the fact that the object of a warning light is to warn persons of the danger and to prevent their close approach. It is not the purpose of the warning signal to provide sufficient light so that one may cross the point of danger in safety. Thus it was held in Stacy v. Phelps, 47 Hun. (N. Y.) 54, that since the object of a guard is merely to warn travelers and not absolutely to prevent contact with the danger, a municipality was not liable for injuries caused by the fall of a runaway team into an unguarded excavation since a guard would not have prevented the accident. 13 R. C. L., par. 356; 29 C. J., page 688, par. 452.
The appellant also had the right to avail itself of the benefit of the action taken by the private contractor Jenne in guarding the excavation on the sidewalk by placing a signal lantern, with like effect and to the same effect as though the appellant had itself put out the signal. Stockton Automobile Co. v. Confer, 97 P. 881.
Hearsay testimony on the part of Mr. Willoughby falls far short from proving any notice to the city that a proper signal which had been duly placed at the scene of the accident had become extinguished in some unknown manner only a few minutes prior to the accident. 29 C. J., 718, par. 486. In the case at bar there is no conflicting evidence as to the placing of the signal lantern nor its sufficiency.
This court in Meridian v. Hyde (Miss.), 11 So. 108, has indirectly passed upon a similar question to that at bar. It has been universally held that a municipality is not liable for injury resulting from defects of its streets or on its sidewalks where the warning signal or barrier has been removed without its knowledge. 29 C. J., par. 452, page 690.
In the case at bar the city not only did not have notice that the signal lantern had become extinguished, but on the other hand one of its employees, Mr. Adams, had walked along Filmore street only a few minutes before the accident occurred and testified that at that time both lights were burning brightly and furnishing a sufficient warning of the danger. Dooley v. Town of Sullivan, Ind., 14 N.E. 566; Doherty v. Waltham, 4 Gray 596; Shear & R. Neg., par. 360; 13 R. C. L., par. 360 at page 440.
It is sufficient if a plain warning of danger is given and the traveler has notice or knowledge of facts sufficient to put him on inquiry. In the case at bar all the evidence forcibly and conclusively demonstrates that had it not been for the fact that the lantern placed on the sidewalk had become extinguished in some unknown manner a few minutes before Mr. Loggins' unfortunate accident, the injury never would have occurred.
The record also discloses that on the night in question this particular lantern was filled with oil and was in good condition and therefore, the fact that it had become extinguished was no fault of the contractor or the appellant. With such testimony, it is our view that there was no question of conflict in fact to be submitted to the jury for decision, and the failure of the trial judge to grant the directed verdict was manifest error. 13 R. C. L., par. 361, page 442. As to what constitutes a sufficient warning, see: Dooley v. Sullivan, supra; 19 R. C. L. (N. S.) 509 and note; Ferguson v. City of Des Moines, 128 N.W. 40; Tegtmier v. City of Covington (Ky.), 207 S.W. 382; Kendall v. City of Des Moines, 167 N.W. 684; Gatewood v. City of Frankfort, 185 S.W. 847, 170 Ky. 292; Carlson v. City of New York, 134 N.Y.S. 661, 150 A.D. 264; City of Portsmouth v. Lee, 71 S.E. 630, 112 Va. 419; Frohs v. City of Dubuque, 150 N.W. 62, 169 Iowa 431; McDonald v. Degnon-McLean Contracting Co., 109 N.Y.S. 519, 124 A.D. 824; Mosier v. East Stroudsburg, Borough, 53 Pa. S.Ct. 377.
For Mississippi cases decided upon the question of the liability of a municipality for injuries on account of defects or dangerous places in its streets or sidewalks, see: Atkinson v. Town of Decatur, 131 Miss. 707, 95 So. 689; McComb v. Hayman, 124 Miss. 525, 87 So. 11; City of Hattiesburg v. Reynolds, 124 Miss. 352, 86 So. 853; City of Greenville v. Middleton, 124 Miss. 310, 86 So. 804, Saxon v. Town of Houlka, 107 Miss. 161, 65 So. 124; Jordan v. City of Lexington, 133 Miss. 440, 97 So. 758; Dahmer v. City of Meridian, 111 Miss. 208, 71 So. 321; Meridian v. Hyde (Miss.), 11 So. 108.
The trial judge after refusing to grant the directed instruction, stated that while he considered it his duty to submit the case to the jury, he was not at all certain that his ruling was correct.
The trial court was in error.
Wise & Bridgforth and Barbour & Henry, for appellee.
I. Appellant argues that the peremptory instruction should have been given. Counsel wholly misconceive the testimony as it shows sharp and direct conflict as to whether the lantern on the sidewalk was ever lighted. The jury has by its verdict found that it never was; and with ample evidence to support this finding, it will not be disturbed.
A further conflict is the fact that both Logan and Jenne testified a lantern of the character used would not go out and the one in the street did not. Then too, common sense tells us that a lantern when burning consumes oil. If this excellent one had burned from five o'clock until nearly eight, as claimed, it would have consumed a part of the oil, as Logan testified that both lamps were full of oil when he lit them and Mr. Jenne, the plumber, on arriving just in time to see the ambulance take the injured man away, took the lantern which was not burning and carried it to the city's fire...
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