Opinion
No. 32751.
October 18, 1937. Suggestion of Error Overruled December 13, 1937.
1. MUNICIPAL CORPORATIONS.
The duty of a municipality to keep its streets and sidewalks reasonably safe for the traveling public is not an absolute one; reasonable care to keep them reasonably safe for those using them with due care being the criterion.
2. MUNICIPAL CORPORATIONS.
If obstruction or defect in street or sidewalk is one that municipality in exercise of ordinary care could not have reasonably foreseen would cause some injury, there is no liability.
3. MUNICIPAL CORPORATIONS.
Pedestrian who was thoroughly familiar with location of penny platform scales in front of building, and knew that the scales protruded about 4 1/2 inches onto the sidewalk, which was 9 feet wide, was not entitled to recover from city for injuries sustained in fall when he stumbled over protruding platform of the scales as he was allegedly backing along sidewalk in retreat from the aggressor in a fight in which pedestrian was engaged.
ETHRIDGE, J., dissenting in part.
APPEAL from the circuit court of Copiah county. HON. J.F. GUYNES, Judge.
J. Hunter Garth and W.S. Henley, both of Hazlehurst, for appellant.
The alleged defect is insufficient basis of liability.
In so far as there is any alleged obstruction upon the sidewalk, the platform of the scales extended over only four inches, and was 5 1/4 inches high. The rest of the scales was, of course, on private property adjacent to the sidewalk and in close proximity thereto.
The case of the City of Meridian v. Crook, 69 So. 182, deals with what is a reasonably safe condition, and holds that a depression in the sidewalk a depth of three inches is not such a defect as to render the city liable, and, we believe, demonstrates that the condition which exists in the sidewalk involved in this case did not constitute a sufficient obstruction to constitute a violation of the requirement that a city maintain its sidewalks in a reasonably safe condition.
City of Richmond v. Lambert, 28 L.R.A. (N.S.), 380; Gulfport Miss. Coast Traction Co. v. Manuel, 85 So. 308; City of Greenville v. Lowery, 159 So. 121; City of Meridian v. Crook, 69 So. 182.
If the scale had been set in that part of the street usually traveled by the public, the city's negligence would be a very different question from that involved where the scale is set on the extreme edge of a nine foot sidewalk and ample room for all persons to travel who are traveling in the usual manner and using ordinary care for their own safety.
Gulfport Miss. Coast Traction Co. v. Manuel, 85 So. 308; Phillips v. City of Jackson, 147 So. 664; Seabridge v. Poli, 119 A. 214; DeHoney v. Harding, 300 Fed. 699; Gumbs v. Klorza, 283 N YS. 866.
We respectfully submit that the defect in this instance which was located mostly off of the sidewalk, but partially on the edge of the sidewalk was not such a defect as to make it probable that an accident would occur. Any person exercising ordinary care for their own safety would have a perfectly level sidewalk in good order eight feet and eight inches in width to trayel, unobstructed and free from danger.
The Mississippi court is committed to the view that obstructions may be placed in streets even to the extent of telephone poles or poles for electric lights provided sufficient width is left in the street for the necessary travel, and if sufficient width for the purpose of the traveler was provided, the city is not liable for the obstruction in other portions of the street.
Matthews cannot recover because he was using the street as a place to fight, and not for the purpose of traveling.
Jackson v. City of Greenville, 72 Miss. 220, 16 So. 382, 48 A.S.R. 553, 27 L.R.A. 527; Dow v. Town of D'Lo, 152 So. 474.
The measure of a municipality's duty in the maintenance of its streets is to use ordinary care to keep them in a reasonably safe condition for persons using ordinary care and prudence.
McComb City v. Hayman, 87 So. 11.
The court limits the municipality's duty to the traveling public, and only to such as are using due care in traveling the streets.
Phillips v. City of Jackson, 147 So. 664; Jackson v. City of Greenville, 72 Miss. 220; Childrye v. City of Huntington, 11 L.R.A. 313.
The assault by Strahan was proximate cause of injury.
Alexander v. Town of New Castle, 17 N.E. 200; Milostan v. City of Chicago, 148 Ill. App. 540; Ladle v. City of Chicago, 204 Ill. App. 475; Miller v. Bahmmuller, 142 N.Y. 924; Alger v. City of Lowell, 3 Allen's Reports, 204; Hartnett v. Boston Store, 265 Ill. 331, L.R.A. 1915C, 460; Bufkin v. L. N.R.R., 137 So. 517; L. N.R.R. v. Daniels, 135 Miss. 33, 99 So. 434, 34 A.L.R. 516; Howell v. I.C.R.R., 75 Miss. 242, 21 So. 746, 36 L.R.A. 545; Marqueze v. Sonteheimer, 59 Miss. 430; Vicksburg Meridian R.R. Co. v. Phillips, 64 Miss. 693; 45 C.J. 925-26, 936; Restatement of Law, Torts, page 1178, secs. 440, 441.
Myron S. McNeil, of Hazlehurst, and J.M. Stevens, Jr., of Jackson, for appellee.
The court will take judicial knowledge of the fact that Hazlehurst, being located in the vegetable center, is built up with small farms in every direction. The testimony shows that the place where the accident occurred was habitually used by the public and that frequently this particular street at this point became "jammed" with people, and that on the night in question the presence of the scales upon the sidewalk was obscured on account of the shed that extended over the sidewalk; that on account of a spring in the scales when a person's foot came in contact with them the top of the scales would slip or move. Under these conditions it is the contention of the appellee that the scales located where they are constituted a nuisance.
Drake v. Corning Building Co., 272 N.Y. Supp. 726.
Though it may not appear that an obstruction in the street which proves to be dangerous and causes injury was erected by permission of the city, it is liable if the same was continued after knowledge of its existence. Where an obstruction in the street is created by the municipality or permitted to be erected by another it must take notice of such defects as ordinary care will discover.
Nesbitt v. City of Greenville, 69 Miss. 22; Seabridge v. Poli, 98 Conn. 297; Nye v. Liggett, 224 Mass. 401, 113 N.E. 201; Bowling v. MacLean Drug Co., 248 Ill. App. 270; Solomon v. Alps Kandy Shoppe, 182 A. 844.
While this court has never been called upon to determine whether or not it was negligence for a city to permit what is commonly known as a penny weighing machine to be and remain upon the street, it is held in the case of Gould v. Town of Newton, 157 Miss. 826: "In action to recover damages against town for an injury alleged to have been sustained by a pedestrian because of a fall resulting from unsafe condition of sidewalk, evidence in respect to negligence of the town in permitting stake on sidewalk in a regularly traveled way held sufficient for submission to jury, in view of comparative negligence statute. Laws 1920, chapter 312."
City of Lumberton v. Schrader, 168 So. 77; City of Meridian v. McBeath, 80 Miss. 485, 32 So. 53.
We are unable to reach any other conclusion except that the city was negligent in permitting the weighing machine to be where it was at the time of the accident in question. At least, it was a question for the jury, and the court can see from the instructions marked given in the case that the question of the negligence of the city was left to the jury to determine.
City of Birmingham v. Henderson, 160 So. 728.
Was the weighing machine, situated as it was under the circumstances of this case, the proximate cause of plaintiff's injury? Cooley on Torts (4 Ed.), Vol. 1, p. 130, defines "proximate cause" as follows: "A proximate cause has been aptly defined as `one which in natural sequence, undisturbed by any independent cause, produces the result complained of.' In discussing this question the Supreme Court of the United States said: `The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft cited case of the squib thrown in the market place.'"
Counsel erroneously assume that Matthews at the time he received the injury was engaged in a fight. We do not think that the facts in this case justify this assumption. Can it be said that a person fleeing from another and undertaking to avoid his adversary in this way is engaged in a fight? A fight as defined by American and English Encyclopedia of Law (2 Ed.), vol. 13, page 12, is: "To fight is to strike with a weapon for victory in battle or single combat; to attempt to defeat, subdue, or destroy an enemy either by blows or weapons."
It is uniformly held by all the law writers that a person who is not at fault himself and who is lawfully upon a street and at the time he receives his injuries he is undertaking to escape danger by flight and comes in contact with some negligent obstruction in the street and is injured that he may recover.
43 C.J., 1066; 7 McQuillan on Municipal Corporations (2 Ed.), sec. 3038; Mayronne v. Keegan, 42 So. 212; Dondono v. City of Indianapolis, 89 N.E. 421.
We insist that the evidence shows conclusively and beyond all question of a doubt that Matthews was undertaking to escape danger by flight and came in contact with this obstruction, which was a nuisance as a matter of law, stumbled and fell over it and was thereby injured, and that under all of the authorities he is entitled to recover from the appellant.
7 McQuillan on Municipal Corporations (2 Ed.), sec. 3035; 43 C.J. 1065; Oliver Bus Lines v. Skaggs, 174 Miss. 210; Public Service Corp. v. Watts, 168 Miss. 235; Maxedon v. City of Corinth, 155 Miss. 588, 124 So. 795; Ft. Wayne Drug Co. v. Flemion, 175 N.E. 670; Cleveland v. Clark, 51 Ind. App. 392, 97 N.E. 822.
We insist that while it may be true that the city authorities did not anticipate an injury brought about as shown under the facts in this case, yet if by the maintenance of a public nuisance upon the streets they had reasonable grounds to believe or anticipate that some injury to some person might occur, then the independent act of a third person, in connection with the negligent act of the city, would not be a defense in this case.
A person who by his negligence produces a dangerous condition which does not become active for mischief until another person by the commission of another act puts the original act into force then the original act of negligence is regarded as the proximate cause of the injury which finally results. The theory is that the first act is regarded as being continuous in its operation up to the time of the second, and the two acts are treated as contemporaneous.
Chicago Ry. Co. v. Goss, 17 Wis. 428; Kellow v. Central Iowa R. Co., 68 Iowa 470, 56 Am. Rep. 858; Joliet v. Shufeldt, 144 Ill. 403; Johnson v. Northwestern Tel. Co., 48 Minn. 433; Martin v. North Star Iron Works, 31 Minn. 407; Hunt v. Missouri Pacific Ry. Co., 14 Mo. App. 160; Pastene v. Adams, 49 Cal. 87; Campbell v. Stillwater, 32 Minn. 308, 50 Am. Rep. 567; Cline v. Crescent City Ry. Co., 43 La. Ann. 327, 26 Am. St. Rep. 187; Gulf, etc., Ry. v. McWhirter, 77 Tex. 356, 19 Am. St. Rep. 755; Electric Ry. Co. v. Shelton, 79 Tenn. 423, 24 Am. St. Rep. 614; Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481, 23 Am. St. Rep. 688; Burrows v. March Gas, etc., Co., L.R., 5 Ex. 67; Harrison v. Great Northern Ry., 3 Hurl. C. 231; Bartlett v. Boston Gas Co., 117 Mass. 533, 19 Am. Rep. 421; Hill v. Port Royal, etc., R. Co., 31 S.C. 393; State v. Rankin, 3 S.C. 438, 16 Am. Rep. 737; Sheridan v. Brooklyn R.R. Co., 36 N.Y. 39, 93 Am. Dec. 490; Illidge v. Goodwin, 5 Car. P. 190; Abbott v. Macfie, 2 Hurl. C. 744; Village of Carterville v. Cook, 16 Am. St. Rep. 250; Ludwig v. Wallace, 198 N.E. 159; City of Hazlehurst v. Shows, 113 Miss. 263, 74 So. 122.
We insist also that leaving the scales where they were constituted a dangerous obstruction of the street and a nuisance. The scales were situated between a pool room on the west and a beer parlor and restaurant on the east. People constantly and continuously traveled between the two places by the weighing scales, and it cannot be insisted that pulling, pushing and backing off from each other while using the sidewalk at this point could not have been reasonably foreseen by a reasonably prudent person and that this or some other accident of like character was improbable.
Bassett v. City of St. Joseph, 14 Am. Rep. 446; Cumberland Tel. Co. v. Woodham, 99 Miss. 318, 54 So. 890.
It is the contention of counsel that the criminal act of Strahan was an efficient intervening cause which broke the causal connection and insulated the negligence of the city. After a careful review of the authorities on this subject the writer is convinced that even conceding the act of Strahan was a criminal act, yet if it was unaccompanied by physical violence and actual force at the time Matthews stumbled and fell over the scales then the act of Strahan was not an independent, efficient force sufficient to break the causal connection between the negligence of the city and the injury, but that the conduct of Strahan operated concurrently with the negligence of the city to produce the injury. In other words, if the criminal act placed Matthews in fear of physical violence, and acting upon this apprehension he undertook to escape danger by flight the act of Strahan was a concurrent cause and not an independent intervening cause. Each and every case cited by counsel for appellant to support their position on this proposition bears out this conclusion.
Alexander v. Town of New Castle, 17 N.E. 200; Knouff v. Logansport, 26 Ind. App. 202, 59 N.E. 347, 84 A.S.R. 292; City of Indianapolis v. Willis, 194 N.E. 343.
In the instant case Matthews was not pushed or thrown over the scales by Strahan. There was a total absence of actual force. He was undertaking to escape violence, but he was not receiving any violence at the time of his injuries. There is no evidence that Strahan even had his hands on Matthews or that any actual physical force had anything to do with his movements.
Solomon v. Continental Baking Co., 172 Miss. 388, 160 So. 762.
The prior act of negligence was operating at the time of injury in question. The injury received was not different in kind from that which would naturally result from the prior act. In other words, the injury is not different in kind from an injury received by stepping backward on the street while in casual conversation or while using the streets for any other lawful purpose.
Nelson v. Union Bank, 33 Manitoba L.R. 508, 13 B.R.C. 329; Knouff v. Logansport, 26 Ind. App. 202, 84 Am. St. Rep. 292, 59 N.E. 347; Public Service Corp. v. Watts, 168 Miss. 235.
The independent force must be an immediate, efficient force or power, which would wipe out and destroy the identity of the original negligence.
Town of Fowler v. Linquist, 37 N.E. 133; Village of Carterville v. Cook, 129 Ill. 152, 16 Am. St. Rep. 248; Burrell Township v. Uncapher, 117 Pa. St. 353, 2 Am. St. Rep. 664; Henry v. Dennis, 93 Ind. 452, 47 Am. Rep. 378; Township of Plymouth v. Graver, 125 Pa. St. 24, 11 Am. St. Rep. 867; Watson on Damages for Personal Injuries, sec. 62, page 66; Hull v. City of Kansas, 54 Mo. 598, 14 Am. Rep. 487.
Ruling Case Law lays down the rule that a sidewalk constructed partly by an owner adjoining the sidewalk and by the city that a city is responsible for the entire sidewalk.
13 R.C.L., page 397, sec. 325, and page 450, sec. 367; Ring v. City of Cohoes, 77 N.Y. 83, 33 Am. Rep. 574; Billman v. Indianapolis, Cincinnati Lafayette R.R. Co., 76 Ind. 166, 40 Am. Rep. 230; Strong v. Granite Furniture Co., 294 P. 303, 78 A.L.R. 480; Brown v. City of St. Johns, 154 N.W. 79.
The authorities seem to uniformly hold that if a person undertakes to escape danger from the rapid movement of an automobile or bicycle or a vicious dog and comes in contact with an obstruction negligently left in the streets the fact that he is at the time undertaking to escape danger by flight does not bar a recovery.
Argued orally by J. Hunter Garth, and W.S. Henley, for appellant, and by Myron S. McNeil, for appellee.
Appellee brought this action in the circuit court of Copiah county against appellant, City of Hazlehurst, to recover damages for an injury received by him in falling over a penny scales platform which protruded a short distance over a sidewalk of the city, upon the alleged ground that such protrusion made the sidewalk unsafe for pedestrians, and that the city was negligent in permitting it. There was a trial resulting in a verdict and judgment in appellee's favor in the sum of $10,000. From that judgment the city prosecutes this appeal.
The court refused the city's request for a directed verdict. That action of the court is assigned and argued as error. We are of the opinion that the request should have been granted, and reach that conclusion from the following considerations: Gallatin street runs east and west; both the street and sidewalk are paved; the sidewalk on the north side of the street is 9 feet wide. Some years ago Allred and Segrest constructed two brick business buildings on the north side of the street, the south walls being about 19 inches from the north edge of the sidewalk; they had this space of 19 inches paved. They permitted another person to place the penny scales against the dividing wall of the two buildings; the platform to the scales was 13 1/2 inches wide at the bottom, 11 1/2 inches wide at the top, approximately 5 inches high and 23 inches long; therefore, the platform extended over the sidewalk about 4 1/2 inches. Appellee had been an employee of Allred for several years. He was thoroughly acquainted with the location of the scales and their protrusion over the edge of the sidewalk. He and one Strahan were engaged in a fight at night, and, according to appellee's testimony, Strahan was the aggressor and was pursuing him along the sidewalk with a drawn knife. In his retreat appellee was backing along the sidewalk when he stumbled over the protruding platform of the scales. The fall resulted in a serious injury.
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 an issue of fact under the law to go to the jury. The duty of a municipality to keep its streets and sidewalks reasonably safe for the traveling public is not an absolute one. Reasonable care to keep them reasonably safe for those using them with due care is the criterion. If the obstruction or the defect is one that the municipality in the exercise of ordinary care could not have reasonably foreseen would cause some injury, there is no liability.
In City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L.R.A. 1916A, 482, the defect in the sidewalk causing the injury was a depression about 3 inches deep, 3 inches wide, and the length of one or two bricks. Mrs. Crook stepped into this hole, tripped and fell, and was injured. The court held that there was no liability on the part of the city; that the defect was one that the city in the exercise of ordinary care could not have reasonably foreseen would result in injury to a person using the sidewalk with due care.
In City of Greenville v. Laury, 172 Miss. 118, 119, 159 So. 121, the plaintiff caught her heel in a crevice in a street and fell. The crevice was "half-inch to three inches in width and depth and 18 inches to 2 feet in length." The court followed the Crook Case and others along the same line.
In Gould v. Town of Newton, 157 Miss. 111, 126 So. 826, this doctrine was applied. On its facts, however, it was close to the feather-edge whether or not a directed verdict was proper. The facts in that case were that the obstruction was in the traveled way for pedestrians, and was a "two by four stake which was driven in the ground, and protruded about an inch above it." The defects in the other two cases were depressions instead of protrusions.
Here we have a sidewalk 9 feet wide, wide enough for at least four persons to walk abreast without crowding or inconvenience, and still be free of the danger of coming in contact with the protruding platform of the scales.
Reversed, and judgment here for appellant.
McGehee, J., did not participate in the decision of this case.
DISSENTING OPINION.
I do not dissent from the law applicable to this case, for the following cases, City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L.R.A. 1916A, 482, City of Greenville v. Laury, 172 Miss. 118, 159 So. 121, and Gould v. Town of Newton, 157 Miss. 111, 126 So. 826, announce the same principles. The difficulty comes when these principles are to be applied to the specific facts in each particular case.
The court below submitted the question of liability to a jury as to whether Matthews was the aggressor in the fight involved in this suit, holding that if he was not the aggressor, he had the right to use the street in retreating from danger.
The situation in the case at bar is that the city had laid out a street a certain width, but the property owners had set their buildings back approximately 19 inches from the sidewalk, and had filled in this space with concrete on a level and connected with the street in such manner as to indicate that it was a part thereof. On this concrete fill between the buildings and the sidewalk there had been placed a penny weighing scale which extended onto the sidewalk proper 4 inches or more, and which was of sufficient height and width as to constitute a danger present in the street, and this the mayor admitted was known to the city for a long time, and which the city took no steps to have removed.
The rule is that if any injury can be reasonably contemplated from a dangerous situation, or an improperly constructed street, the city will be liable, although it might not contemplate a particular injury therefrom. The jury was warranted in believing that Strahan was the aggressor, for Matthews so testified, and, as I view the record, there is nothing to contradict his testimony in that regard. According to the evidence, Strahan drew his knife and assaulted Matthews, whereupon he struck Strahan with his fist, and backed away pursued by Strahan. Near the sidewalk was a Coca-Cola sign on the concrete laid by the property owner, and he held this sign between himself and Strahan, who was advancing with a drawn knife. Matthews was retreating backward, being unable, under the then conditions, to turn and flee, and was acting with the discretion attributable to a prudent man under like circumstances, according to the evidence of appellee, and the jury was warranted in so finding. If Matthews had been the aggressor in the difficulty, he might be estopped by his own wrong from claiming damages; but the testimony shows that Strahan was the aggressor. A person has the right to use streets for traveling and for retreating from danger, or when he is trying to prevent an injury to himself in the manner disclosed by the evidence in the case at bar.
While not basing this opinion on the fact that the paved part between the original sidewalk and buildings constituted a part of the street, I think it did so, because when the concrete was extended from the sidewalk to the nearby buildings, making the appearance of a street the entire way, the public had the right to regard it all as the street, and manifestly the city so treated it, as well as the traveling public.
Under these facts, I think there was liability to appellee for his injury, and, since it was severe and serious, the verdict is not excessive, and I think the judgment should be affirmed.