Opinion
No. 34625.
September 22, 1941.
1. MUNICIPAL CORPORATIONS.
A city must exercise reasonable care to keep its streets in reasonably safe condition for their accustomed use in accustomed manner.
2. MUNICIPAL CORPORATIONS.
A city must use reasonable care to see that street is kept reasonably free of such real dangers as will imperil traveler making customary use thereof in customary manner and exercising such caution as should reasonably be expected of him under all circumstances.
3. MUNICIPAL CORPORATIONS.
A strip of land, located between sidewalk and paved portion of street and habitually and customarily used for long time for automobile parking going to and from automobiles and such pavement, is part of street so far as pedestrians are concerned.
4. MUNICIPAL CORPORATIONS.
The rule that city must exercise reasonable care to keep streets in reasonably safe condition for their accustomed use in accustomed manner is as obligatory in respect to use thereof at night as in day.
5. MUNICIPAL CORPORATIONS.
Any person, using any portion of street within rule requiring city to exercise reasonable care to keep streets in reasonably safe condition for their accustomed use in accustomed manner, has right to presume, and act on presumption, that way is reasonably safe for such use, whether by day or night, in absence of actual knowledge to contrary, and is not required to anticipate or be constantly on alert for unreasonable dangers not called to his attention or discoverable by use of ordinary care under all circumstances.
6. MUNICIPAL CORPORATIONS.
Generally, a person desiring to cross or enter street in either nighttime or daytime is not confined to a crossing, but may assume that all parts of street customarily traveled are reasonably safe, that is, free from unreasonable danger, and may cross or enter street at any point or cross it diagonally without being guilty of negligence as matter of law, especially in case of residential street.
7. MUNICIPAL CORPORATIONS.
A pedestrian, falling into ditch, of which he had no knowledge and which was not disclosed by any light, between sidewalk and leaking water meter near paved portion of street while making his way from point on sidewalk in front of his house to neighbor's automobile parked near meter, was not guilty of contributory negligence, barring recovery of damages from city for resulting injuries as matter of law because he ran toward automobile.
8. APPEAL AND ERROR.
In considering propriety of trial court's peremptory charge to jury, Supreme Court, on appeal from judgment on verdict returned pursuant to such charge, must consider evidence and record thereof in light of most favorable conclusions which jury could reasonably have drawn therefrom in appellant's behalf had case been submitted to jury on proper instructions.
9. NEGLIGENCE.
Contributory negligence of pedestrian, injured by fall into ditch between sidewalk and leaking water meter near paved portion of street, does not wholly bar his recovery of damages from city, in view of comparative negligence statute, which applies to municipalities as well as other defendants (Code 1930, sec. 511).
10. MUNICIPAL CORPORATIONS. Negligence.
The rule that city owes duty to exercise ordinary care to keep its streets reasonably safe for use of persons exercising reasonable care and caution has nothing to do with contributory or comparative negligence (Code 1930, sec. 511).
11. MUNICIPAL CORPORATIONS.
A municipality has right to construct and maintain its streets in light of expectation that users thereof will look to physical aspects and natural condition of things around them and will anticipate and avoid such things as stepdowns, fire plugs, electric light poles, etc., reasonably to be expected, when reasonably placed along sidewalks and in neutral strips between walks and paved portions of streets, but cannot escape liability for injuries to pedestrian falling into unlighted ditch in traveled way on ground that he should have avoided it somehow.
12. NEGLIGENCE.
A person, to whose injuries city's negligence in maintenance of street contributed, is not barred from recovering damages from city because he was also guilty of negligence, unless his negligence constituted sole proximate cause of injuries.
APPEAL from the circuit court of Coahoma county, HON. WM. A. ALCORN, JR., Judge.
J.H. O'Neal and John W. Crisler, both of Clarksdale, for appellant.
The streets of a municipality, from side to side and from end to end, are for the use of the public.
Caldwell v. George, 96 Miss. 484, 50 So. 631; Higginbottom v. Village of Burnsville, 113 Miss. 219, 74 So. 133.
The park or neutral strip between the sidewalk and curb is as much a part of the street as any other ground and the duty is upon the municipality to keep it in a reasonably safe condition for travelers.
13 R.C.L. 383, 312, and authorities cited; City of Natchez v. Cranfield, 155 Miss. 540, 124 So. 656.
The duty is upon a municipality to maintain in reasonably safe condition property owned by it, which the public frequently uses for travel.
Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 379; Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42.
Even if the injured party has been guilty of contributory negligence he is entitled under our Comparative Negligence Statute to recover from a municipality for injuries resulting from its negligence in failing to keep its streets in reasonably safe condition.
Gould v. Town of Newton, 157 Miss. 111, 126 So. 379; Mayor of Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713; Jordan v. City of Lexington, 133 Miss. 440, 97 So. 758.
Momentary forgetfulness of a known danger will not prevent an injured party from recovering from a municipality for injuries resulting from its negligence in failing to keep its streets in reasonably safe condition.
City of Natchez v. Lewis, 90 Miss. 310, 43 So. 471; Higginbottom v. Village of Burnsville, 113 Miss. 219, 74 So. 133; Mayor of Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713; Standard Oil Company v. Decell, 175 Miss. 251, 166 So. 379; Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42.
When a city embarks in the management of any utility for profit, it is liable, or not liable, by precisely the same rules applicable to private corporations or individuals conducting such enterprises.
Yazoo City v. Birchett, 89 Miss. 374, 42 So. 569.
Municipalities and private enterprises are alike liable for negligent maintenance of their premises, when such premises are customarily used by the public for travel.
Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 379.
In exercising ordinary care a traveler at night, in the absence of knowledge to the contrary, has the right to act on the assumption that the street or way is in a reasonably safe condition for travel by night as well as by day; and is not bound to anticipate that he will encounter excavations (or cavities), without having some notice thereof by lights, or without other precautions taken for his protection.
43 C.J. 1095.
A traveler at night has a right to presume that there are no hidden or secret dangers, and that streets, passages, or footways, without warning, may be traversed safely, and should he in the nighttime step into a hole existing by reason of want of diligence on the part of the city, the city would be liable, although to incur such danger existing in the daytime, which he could see and which he ran into, would be negligence.
43 C.J. 1095, Note 98 (a); Seward v. Wilmington, 16 Del. 189, 42 A. 451.
Even though a hole is not within the confines of the street, but close enough to become a hazard should a person inadvertently step into it, the jury may find this to constitute negligence.
City of Vicksburg v. Scott, 168 Miss. 572, 151 So. 954; Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 379; Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42.
W.W. Venable, of Clarksdale, for appellee.
A municipality owes the duty of care only to that class of users of its streets that are exercising due care for their own safety, in their use.
Bartram v. Sharon, 71 Conn. 686, 43 A. 143, 46 L.R.A. 144, 71 Am. St. Rep. 225; Board of Levee Com. v. Parker, 187 Miss. 621, 193 So. 346; Bosworth v. Swansey, 10 Met. (Mass.) 363, 43 Am. Dec. 441; City of Hazlehurst v. Mayes, 96 Miss. 656; City of Greenville v. Laury, 172 Miss. 118; City of Vicksburg v. Hennessy, 54 Miss. 391; Cleveland v. Bangor, 87 Me. 259, 32 A. 892, 47 Am. St. Rep. 326; Code of 1930, sections 2411, 2414; Commercial Bank v. Chambers, 8 S. and M. 9; Davenport v. Blackmur, 184 Miss. 836; Dugger v. Board of Supervisors, 139 Miss. 552, 104 So. 459; Eaton v. Follett, 48 R.I. 189, 52 A.L.R. 1007; Ehleiter v. Milwaukee, 121 Wis. 85, 98 N.W. 934, 66 L.R.A. 915, 105 Am. St. Rep. 1027, 2 Ann. Cas. 178; Feeley v. Melrose, 205 Mass. 329, 91 N.E. 306, 27 L.R.A. (N.S.) 1156, 137 Am. St. Rep. 445; First Natl. Bank v. Malheur County, 30 Or. 420, 35 L.R.A. 141; Flagg v. Hudson, 142 Mass. 280, 8 N.E. 42, 56 Am. Rep. 674; Gould v. Town of Newton, 157 Miss. 111; Green v. Hutson, 139 Miss. 471, 104 So. 171; Hayes v. Hyde Park, 153 Mass. 514, 27 N.E. 522; Horrigan v. Clarksburg, 150 Mass. 218, 22 N.E. 897, 5 L.R.A. 609; Jackson v. Greenville, 72 Miss. 220; Jones v. Union County, 63 Or. 566, 127 P. 781, 42 L.R.A. (N.S.) 1035; Kieffer v. Hummelstown, 151 Pa. 304, 24 A. 1060, 17 L.R.A. 217; Lane v. Crombie, 12 Pick. 177; Lee County v. Smithville, 154 Ga. 550, 115 S.E. 107; Lewis v. Leon County, 91 Fla. 118, 107 So. 146; Lyons v. Watt, 43 Colo. 238, 95 P. 949, 18 L.R.A. (N.S.) 1135; Mayor, etc. v. Harralson, 136 Miss. 872; Moore v. Abbott, 32 Maine 46; Nicholson v. N.Y., etc., R. Co., 22 Conn. 74, 56 A.D. 390; Notes 10 L.R.A. 737, 42 L.R.A. (N.S.) 1035; Perkins v. Fayette, 68 Me. 152, 28 Am. Rep. 84; Planters Bank v. State, 6 S. and M. 628; Pratt v. Weymouth, 147 Mass. 245, 17 N.E. 538, 9 Am. St. Rep. 691; Restatement of Torts-Negligence, Section 286, comment (c), Comment on Clause (a); Rowell v. Lowell, 7 Gray (Mass.) 100, 66 Am. Dec. 464; Rush v. Davenport, 6 Iowa 443; Schaeffer v. Jackson Twp., 150 Pa. 145, 24 A. 629, 18 L.R.A. 100, 30 Am. St. Rep. 792; Seward v. City of Jackson, 165 Miss. 478; State v. Atkins, 64 Kan. 174, 97 A.S.R. 343, affirmed 191 U.S. 207; State v. Cresswell, 117 Miss. 795, 78 So. 770; State ex rel. v. Lewis, 187 Ind. 564, 120 N.E. 129; Steitenroth v. City of Jackson, 99 Miss. 354; Thubron v. Dravo Contracting Co., 238 Pa. 443, 86 A. 292, 44 L.R.A. (N.S.) 699, Ann. Cas. 1914C 252; Tullos v. Town of Magee, 181 Miss. 288; Upton v. Windham, 75 Conn. 288, 53 A. 660, 96 Am. St. Rep. 197; Wise v. Yazoo City, 96 Miss. 507.
Plaintiff's own negligence in reckless disregard of his own safety was the sole proximate and legal cause of his injury.
Christian v. Illinois Cent. R. Co., 12 So. 710; Coal Road Const. Co. v. Tipton, 5 Ky. L. Rep. 774; Fuller v. Illinois Cent. R. Co., 100 Miss. 705; Holwerson v. St. Louis etc., R. Co., 157 Mo. 216, 57 S.W. 770; Louisville and N.R. Co. v. McCoy, 81 Ky. 403; Moore v. Lindell R. Co., 176 Mo. 528, 75 S.W. 672; Myers v. Sanders et al., 189 Miss. 198; Ohio and M.R. Co. v. Eaves, 42 Ill. 288; Osteen v. Atlantic Coast Line R. Co., 119 S.C. 438, 112 S.E. 352; Redson v. Michigan C.R. Co., 120 Mich. 671, 79 N.W. 939; Restatement Torts-Negligence, section 282, also comment "g" to Section 500 (See special note); Restatement of Torts-Negligence, sections 501 and 503, Section 501, clause 2, section 503, clause 2; St. Louis, etc., R. Co. v. Ault, 101 Miss. 341.
The plaintiff's proof did not show that the defendant was guilty of any negligence or that if negligent it caused the injury.
J.H. O'Neal and John W. Crisler, both of Clarksdale, for appellant, in reply.
The case of City of Vicksburg v. Henessey, 54 Miss. 391, strongly relied on by appellee, does not touch the question directly or indirectly. In the first place, this case was decided long before our comparative negligence statute was enacted. In the next place the court held that the failure to have a guard rail at the precipitous descent had nothing to do with the injuries.
In City of Greenville v. Laury, 172 Miss. 118, 159 So. 121, also relied on by the appellee, the court, in referring to the alleged act of negligence, said as follows: "Such an act creates liability only when the circumstances attending it are such that the actor should have inferred that the doing of the act 'creates an appreciable chance of causing' injury to another." Did the leaving of this death trap in the strip between the sidewalk and the curb create an appreciable chance of causing injury to people using the streets?
Every argument made by counsel for appellee with reference to the duty of a municipality to maintain its streets was made in the case of Jordan v. City of Lexington, 133 Miss. 440, 97 So. 758. The case was thoroughly briefed on the identical proposition contended for by the appellee in the case at bar. This court, in answering the argument that the comparative negligence statute did not apply, used the following language: "It is undisputed that this condition had existed for a long period of time and that the city authorities had notice thereof, and, since the negligence of the city is established, contributory negligence, if any, of appellant will not defeat a recovery, and we think the peremptory instruction on the question of liability should have been granted."
Argued orally by J.H. O'Neal and John W. Crisler, for appellant, and by W.W. Venable, for appellee.
Cherry Street, running east and west, is one of the principal residential streets in the City of Clarksdale. It is 80 feet wide. On each side, next to the property lines, is a concrete sidewalk 4 feet wide, and on each side between the sidewalks and the central hard-surfaced pavement is a neutral strip about 13 or 14 feet wide. This neutral area was used as a parking strip for automobiles, and for going to and from automobiles and the like and for reaching the paved portion of the street, and had been habitually and customarily so used for a long time.
Appellant lived on the north side of this street some 400 feet from the east corner and about 300 feet from the corner to the west. Within the neutral strip and to the eastward of appellant's residence but in front of the property adjoining appellant on the east, there was a water meter located near the paved portion of the street. The meter was leaking, and this, aided by rains, had caused a ditch to form running from the meter in a northerly direction towards the sidewalk. This ditch was about 7 feet long, 2 1/2 feet wide and 2 feet deep. The City had actual notice of the existence of this ditch, and for a sufficient time to have remedied the situation or else to have guarded against it. There were no lights so located as to disclose the ditch at night, but there was sufficient of a diffused light to reveal the outlines of an automobile when standing on the neutral strip.
About midnight of the night in question, appellant was anxious to go to the business section of the City, and had ordered a taxicab for that purpose. While appellant was waiting on the sidewalk in front of his house for the arrival of the taxicab, then considerably overdue, appellant heard a neighbor getting into his automobile, which was parked a few feet to the east of the water meter, and knowing that this neighbor customarily went to work about this hour, appellant called to him and ran toward the neighbor's automobile, and in doing so went in a southeasterly direction upon and partly across the neutral strip. Thus the ditch lay between the point where appellant left the sidewalk and the point where the neighbor's car was located, and in making his way, as mentioned, appellant fell into the ditch and was injured. He did not know of the existence of the ditch, according to the present record, and as already stated, there was not enough light to disclose it.
The trial court granted a peremptory charge in favor of the City, and that action is sought to be supported on the argument that appellant was guilty of reckless negligence, considering the place and circumstances of the injury, and that in consequence there should be no liability therefor.
In 7 McQuillan Munic. Corp. (2 Ed.), pp. 84, 85, it is said that the "space between the sidewalk and the roadway is a part of the street, although not intended for actual travel, and the municipality must protect pedestrians and other travelers from injury from defects in such part of the street"; and to the same effect is the text 13 R.C.L., p. 383. Under modern conditions the rule is not to be so broadly stated, and is subject to exceptions, as may be seen from an examination of the cases and annotations cited in 25 Am. Jur., sec. 407, pp. 702, 703. The question will depend, therefore, more largely upon what under the proof had been, up to the time of the injury, the customary use which had prevailed as respects the neutral strip. Reasonable care must be exercised to keep streets in a reasonably safe condition for their accustomed use, in the accustomed manner of that use; and in order that this duty shall be performed, the city must use reasonable care to see that the street is kept reasonably free of such real dangers as will imperil the traveler when he is making the customary use, in the customary manner, and in the use exercises such caution as under all the circumstances of the case should reasonably have been expected of him.
We have already stated that the neutral strip in question had been for a long time habitually and customarily used as a parking space for automobiles, and for going to and from automobiles and the like and for reaching the paved portion of the street. It follows under the rule that the neutral strip here in question was as much a part of the street, so far as pedestrians were concerned, as was any other part of the thoroughfare; and the rule of reasonable safety is as obligatory in respect to the use at night as in the day.
And in the use of any portion of the street which is within the stated rule, any person, who has no actual knowledge to the contrary, has the right to presume and to act on the presumption that the way is reasonably safe for the accustomed use, whether by day or night, and he is not required to anticipate or be constantly on the alert for unreasonable dangers in his path to which his attention has not been called or which would not be discovered by the use of ordinary care, all the circumstances considered. 7 McQuillan Munic. Corp. (2 Ed.), pp. 265 et seq.; 43 C.J., pp. 1078, 1095; Vicksburg v. Harralson, 136 Miss. 872, 884, 101 So. 713, 39 A.L.R. 777.
Moreover, the general rule by the weight of authority is, and especially as to residential streets, that a person desiring to cross a street or to go into a street from the sidewalk, either in the nighttime or in the daytime, is not confined to a crossing but may assume that all parts of the street which are customarily traveled are reasonably safe, that is to say, are free from unreasonable dangers, and may therefore cross it or cross into it at any point without being guilty of negligence as a matter of law; and he may cross diagonally. 25 Am. Jur., pp. 744, 745, and cases there cited.
Applying the foregoing rules to the facts of this case, as stated, it would not be permissible to say, as a matter of law by a peremptory instruction, that appellant would have been guilty of negligence had he walked on the occasion in question, instead of running as he did. But had he walked he would still have fallen into the ditch, of which he had no knowledge, and which was disclosed by no light. A guard light or lights could easily have been placed there by the City. And since appellant would have been injured in all probability had he walked, there is no real basis for wholly excluding him because he ran.
In what has been above said we have taken the evidence and the record thereof in the light of the most favorable conclusions in behalf of appellant which the jury could reasonably have drawn therefrom, had the case been submitted to them on proper instructions. This must be done when considering the propriety of a peremptory charge. But if we should proceed from the opposite viewpoint, this would admit of no greater criticism of appellant than that he may have been guilty of contributory negligence — not of such negligence as would constitute the sole proximate cause of the injury. Had he known of the ditch and its precise location, and with the present consciousness thereof had attempted to jump it and had failed to clear it, this conscious and deliberate action might be said to have been the sole proximate cause of the injury; but there is nothing in this record of that or any equivalent import.
And if his negligence was contributory — and this is the most that could be said of it, even if that is to be said — this would not wholly bar him of recovery under our comparative negligence statute, Section 511, Code 1930, which is applicable to municipalities as it is to other defendants. Jordan v. City of Lexington, 133 Miss. 440, 97 So. 758.
But the City argues that when an injured user of streets is negligent in the use thereof, it is not a question of contributory or comparative negligence, but simply that the municipality owes no duty to a negligent user; and it refers to the formula used by this Court in Greenville v. Laury, 172 Miss. 118, 122, 159 So. 121, 123, that the municipality owes the duty "to exercise ordinary care to keep its streets reasonably safe for use of persons exercising reasonable care and caution." The City says that this means that unless the user exercises reasonable care and caution the city owes him no duty, however remiss the city may have been. It says that this formula sets over into a class to whom the city owes no duty, all those who are chargeable with any negligence in the use of the streets, and that since the city owes to this class no duty, the comparative negligence statute is not involved.
The City is correct that the quoted formula has nothing to do with contributory or comparative negligence. It was the established formula used in this State long before the comparative negligence statute was enacted, and is the formula which is in use in many states where contributory negligence is still a complete defense. The formula has to do with the measure of the care which the city must exercise, and has no such purpose, so far as it in itself is concerned, as to absolve the city, however negligent it may have been, if only some negligence may be shown against the injured person, and solely because of the latter. The expression is a brief definition of the duty of the city but does not operate as a deprivation of the right of the citizen. It sets up a standard of conduct for the city under which it may be reasonably absolved, but not a criterion by which the citizen shall be unreasonably barred.
The problems with which municipalities must each deal in the construction and maintenance of streets, over the considerable area involved, are numerous and varied, such, for instance, as the topography of the area, the necessities that other than the purposes of travel must be accommodated therein, and many other difficulties and necessities — difficulties which are often so arduous that the best that the municipality can reasonably do is still far from furnishing or keeping a perfect street or way. A street may have to go down a decline of twenty degrees or more, and this may in the nature of things be unsafe when there is ice or sleet, but the municipality would not be liable for this; while, on the other hand, if the floor in an industrial plant were constructed on any such a plan of declivity, that of itself would condemn it as an unreasonably unsafe place to work.
The municipality has the right, therefore, in the construction and maintenance of its streets to act in the light of expectation that the users thereof will look to the physical aspects and the natural condition of things around them, and will also anticipate and avoid such things as stepdowns, fire plugs, electric light poles, letter boxes, and the like, which are reasonably to be expected, when reasonably placed, alongside walks and in neutral strips, according to the character of the particular area in which the traveler is moving, and that in any event he must not expect a perfect way; and this is what is meant by the formula that reasonable care must be taken to make the streets safe for the use of those who on their part use reasonable care — not that a municipality may leave an unlighted ditch, such as in this case, in a traveled way and then expect and say that somehow the traveler should have avoided it. See the interesting opinion in Wheeler v. Town of Westport, 30 Wis. 392. All this is what is meant by the text 7 McQuillan Munic. Corp. (2 Ed.), p. 30, that "the city has a right in the maintenance of its walks to expect a reasonable degree of care from all persons; and when its walks are safe for the ordinarily prudent use, there is no negligence." And see also op. cit., pp. 38 et seq. The measure of care imposed on the city is defined in terms of an anticipated use and is modified accordingly; but if the city has failed to fulfill this measure of care, an its negligence concurs with or contributes to an injury, the injured person is not barred although he also was guilty of negligence — unless, of course, his negligence was such as to constitute the sole proximate cause.
Reversed and remanded.