Opinion
No. 30941.
January 22, 1934. Suggestion of Error Overruled February 5, 1934.
1. MUNICIPAL CORPORATIONS.
Municipality in maintaining its streets must use ordinary care to keep them in reasonably safe condition for persons using ordinary care.
2. MUNICIPAL CORPORATIONS.
To charge municipality with constructive notice, danger must be one which should have been discovered by municipal authorities on inspection with ordinary care, and within reasonable time, and that after notice there was reasonable time for repair.
3. MUNICIPAL CORPORATIONS.
Requirements of city's inspection of sidewalks, when inspection should be made, or how often, are usually for jury, but, when evidence is insufficient, court must so hold and direct verdict.
4. MUNICIPAL CORPORATIONS.
City held not negligent in failing to discover and fill in covered telephone pole hole on edge of sidewalk, which was unnoticed by persons in immediate vicinity, and hence was not liable for plaintiff's injuries when falling in hole.
5. MUNICIPAL CORPORATIONS.
Failure of passers-by to discover defect in sidewalk is not sufficient to relieve municipality of constructive notice, but, if defect was not observable by persons constantly passing by, constructive notice cannot be charged upon municipality unless defect was result of municipality's faulty work.
6. MUNICIPAL CORPORATIONS.
Small town held not negligent in failing to discover and fill in telephone pole hole, near sidewalk upon infrequently used street, and covered up four days after being dug and was not liable for plaintiff's injuries when falling through covering on hole.
7. EVIDENCE.
Supreme Court takes judicial knowledge of public census.
8. TELEGRAPHS AND TELEPHONES.
Telephone company buying other company which left open post hole near sidewalk, and assuming all such other company's liabilities, held not liable for plaintiff's injuries from falling into hole, where ordinary inspection would not have discovered hole.
ON SUGGESTION OF ERROR.9. MUNICIPAL CORPORATIONS.
Abandoned telephone pole hole near sidewalk covered with planks and dirt shortly after being dug, later overgrown with grass and unobservable for several years, held not "public nuisance," so as to render town liable for plaintiff's injuries from falling in hole.
10. NUISANCE.
To constitute "public nuisance," alleged nuisance must affect rights enjoyed by citizens as part of public.
APPEAL from Circuit Court of Simpson County.
G.Q. Whitfield, of Jackson, and Edwards Edwards, of Mendenhall, for appellant.
The circumstances of each case must determine whether constructive notice of the defect is to be attributed to the municipality, and hence constructive notice is ordinarily a question of fact for the jury.
7 McQuillin Municipal Corporations, section 3002, page 237; Greenville v. Middleton, 124 Miss. 310, 86 So. 804; Whitfield v. City of Meridian, 66 Miss. 570, 6 So. 244, 4 L.R.A. 834, 14 Am. St. Rep. 596; 28 Cyc. 1388, 1507; 6 McQuillan on Municipal Corporations, sections 2813 and 2814; Bailey v. Winston, 157 N.C. 252, 72 S.E. 916; Harriman v. City of Boston, 114 Mass. 241, 48 N.E. 186; Naylor v. Salt Lake City, 9 Utah 491, 35 P. 509; 20 L.R.A. (N.S.) 513; Jefferson Standard Life Ins. Co. v. Jefcoats, 143 So. 842; 137 So. 108; 125 So. 819; 126 So. 402; 116 So. 601.
It is the duty of the municipality to maintain the whole width of the sidewalk in a reasonably safe condition.
7 McQuillin Municipal Corporations, section 2931, pages 73 and 74; 184 Ill. App. 298; 110 Ill. App. 356; 3 Cush. (Mass.), 174; 180 Mo. 536; 191 N.C. 507; City of Jackson v. Carver, 35 So. 157; Jordan v. City of Lexington, 97 So. 758; City of Natchez v. Lewis, 43 So. 471; 145 So. 356; 10 So. 452; 38 So. 547; Seborn v. Charlotte, 171 N.C. 541.
The peremptory instruction given the defendant, Southern Bell Telephone Telegraph Company, is just as manifestly palpable and reversible error. The hole in the sidewalk in this case was a public nuisance.
20 R.C.L., Nuisances, section 8, page 384; 178 Mass. 569; Matthews v. Missouri Pac. Ry. Co., 26 Mo. App. 79, 80 and 81; Fuller v. Andrews, 230 Mass. 139; Bixby v. Thurber, 80 N.H. 441.
Whether the street was wide enough to be safe, whether it was in a reasonably safe condition for public use by travelers who use ordinary care to avoid injury, are almost always questions for the jury.
2 Dillon on Municipal Corporations (4 Ed.), sec. 1060; House v. Metcalf, 27 Conn. 639.
The defendant, Southern Bell Telephone Telegraph Company, in this case, was charged by the law and presumed to know of the condition of its entire line, and especially of the condition of all sidewalks which it made use of, and to know or discover within a reasonable time, whether any such sidewalk was in a defective condition, and to repair the same, but failing in that to respond to damages to any pedestrian hurt thereby by reason of said defective condition.
62 C.J. 62, secs. 66, 67; Dobbins v. Western Union Telegraph Company, 50 So. 919.
When the Southern Bell Telephone Telegraph Company suffered the said public nuisance to continue on its sidewalk, it amounted on its part to a failure to perform that express duty to the public and required by statute, section 7061, Mississippi Code of 1930.
Matthews v. Missouri Pac. Ry. Co., 26 Mo. App. 79.
W.M. Lofton, of Mendenhall, for appellee, Town of D'Lo.
The evidence shows beyond dispute, that the appellant here, and plaintiff in the court below, had lived in the home abutting this sidewalk where the alleged injury occurred for twelve or fourteen years; and during all that time she never knew that this hole was there until that day in December, 1931, when she stepped into it while sweeping the China leaves that fell on the sidewalk from a tree in her yard. If she failed to make this discovery of that little hole, during the twelve or fourteen years that she had lived there, then it could not be successfully argued that the said town of D'Lo and its officials, had been negligent because they had not discovered it.
Before the said town of D'Lo could be held liable in damages to the plaintiff it must be shown that the town of D'Lo and its officials and employees were negligent in their failure to discover the hole in the sidewalk in this case.
The undisputed testimony of the appellant herself, shows that at the time she received the injury, she was making use of the sidewalk for a purpose wholly inconsistent with that for which it was established.
Jackson v. City of Greenville, 72 Miss. 220, 16 So. 382.
A municipality is not liable to any party injured because of defects in its sidewalks, if used for any other purpose than that of travel.
Butler Snow, of Jackson, for appellee, Southern Bell Telephone Telegraph Company.
The evidence does not show any connection whatever between the Southern Bell Telephone Company and the hole in question; does not show that it dug it, ordered it to be dug, assumed any control over it, maintained it, used it, or in any way or manner had any notice of its existence.
The rule is that no one can be held liable for the existence of a nuisance, unless he has knowledge, either actual or imputed, of it.
Cooley on Torts (3 Ed.), 1287; 20 R.C.L. 392, et seq.; 46 C.J. 741, 744, 745, 746; Walters v. Wicomico County, 35 Md. 385; Morris Canal Bank Company v. Ryerson, 27 N.J.L. 457; 14 A.L.R. 1094, et seq.; Buckingham v. Elliot, 62 Miss. 296; King v. Railway Company, 88 Miss. 456.
The rule is universal that if the former owner creates a nuisance on land not his own, whether public or private, that the subsequent purchases is not liable for maintaining the nuisance without it adopts or maintains it, or assumes the duty to do so.
46 C.J. 746; Fordyce v. Russell, 59 Ark. 312; Wayland v. Railway Company, 75 Mo. 548; Walters v. Wicomico County, 35 Md. 385; Morris Canal Bank Co. v. Ryerson, 27 N.J.L. 457; Pollock on Torts (9 Ed.), chapter 10, page 412; Cooley on Torts (3 Ed.), 1297; Lincoln v. First National Bank, 93 N.W. 698.
In this case the Southern Bell Telephone Telegraph Company did not purchase the hole in the ground; did not take possession of the hole in the ground; never knew of its existence until approximately ten years after the hole is alleged to have been dug. Under no theory, can it be said that the Southern Bell Telephone Telegraph Company maintained this nuisance.
The evidence fails to show with any degree of certainty that the predecessor in title of the Southern Bell Telephone Telegraph Company created, or had anything to do with the creation of the hole in question, or that the same was constructed by the servants of the Cumberland Telephone Telegraph Company in furtherance of the master's business, or within the scope of their employment.
It is elemental that it was necessary for the declaration to contain this allegation to state a cause of action on the appellant's theory.
39 C.J. 1353, 1355; Y. M.V.R.R. v. Denton, 160 Miss. 851, 860; I.C.R.R. v. Green, 130 Miss. 622, 630; Tyson v. Utterback, 154 Miss. 381; Hercules Powder Co. v. Calcoate, 161 Miss. 860; Y. M.V.R.R. v. Green, 147 So. 323; Burnside v. Gulf Refining Co., 148 So. 219.
The rule is perfectly well settled that it is proper to give a peremptory instruction where the court would set aside a verdict as not based upon evidence.
Wooten v. R.R. Co., 89 Miss. 322; Flora v. Express Co., 92 Miss. 66; Elliot v. R.R. Co., 145 Miss. 769; M. O.R.R. v. Clay, 156 Miss. 463.
Argued orally by G.Q. Whitfield, for appellant, and by George Butler and W.M. Lofton, for appellee.
Appellant was injured severely by falling into a hole on the outer edge of the sidewalk of the street, the said hole being immediately in front of the residence of the plaintiff. The hole was not an open one, but had been covered over with plank and dirt and by the overlapping of carpet grass, as will be stated later. Plaintiff was sweeping off some accumulated leaves, and, not being conscious of the presence of the hole, she stepped upon its covering, which gave way, and she was thus injured. The town contends that the street and so-called sidewalk had never been taken over for improvement and maintenance by the town, and, if mistaken in this, then that appellant was not using the sidewalk for the purpose of travel, but for a different purpose of her own about which the town owes no municipal duty, relying on this point on Jackson v. Greenville, 72 Miss. 220, 16 So. 382, 27 L.R.A. 527, 48 Am. St. Rep. 553. We lay those contentions aside and place our decision upon other grounds now to be stated.
The measure of the duty of a municipality 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 v. Hayman, 124 Miss. 525, 535, 87 So. 11; City of Natchez v. Cranfield, 155 Miss. 540, 124 So. 656. There is no assertion in the evidence that the town authorities had actual knowledge of the hole in the sidewalk, but the case is based upon the contention that there was constructive notice. The rule in that respect is that the danger must have been one which should have been discovered by the town authorities on an inspection made with ordinary care and within a reasonable time, and that after such notice there shall have been a reasonable time for the repair or remedy of the danger. There is no fixed requirement as to any formal inspection, or when inspection shall be made or how often, that question depending upon a variety of circumstances, among which are to be considered the size of the municipality, and, therefore, the number of its active municipal officers charged with such duties, and whether the location of the defect is on one of the main and much-used thoroughfares, or whether in a remote location not frequently used for general traffic. And while all these questions are usually for the jury, nevertheless, when the evidence is insufficient, it is the duty of the court to so hold and to direct a verdict. City of Greenville v. Middleton, 124 Miss. 310, 86 So. 804. That is to say, it is not permissible, by the device and under the guise of a finding of facts by a jury, that the law of the land shall be altered or amended.
The facts, more in detail, are that about ten years ago the Cumberland Telephone Telegraph Company was constructing a telephone line in the town of D'Lo, appellee, and at that time it placed one of its poles in front of the residence of the plaintiff, and near the ditch which ran along the street proper, and about five feet from the property fence line a hole was dug for the reception of the pole. The hole was about one foot in diameter and two and one-half feet deep. Mr. Benton, a carpenter, testified, and his testimony is undisputed, that at the time the hole was dug he was at work next door building a garage. While he was at this work, it was decided by the telephone company to locate its line differently, and the pole was taken away, but the hole was not filled up when the pole was removed. Very shortly after the pole was taken away, he was making some repairs on the residence of the plaintiff; he had his lumber on what for the purposes of this case we may term the sidewalk, and, while cutting this lumber for the work he was engaged in, he stumbled over this hole, and he thereupon at once took some pieces of plank that he had cut off, and placed them over the hole and kicked dirt over the plank to keep from falling in the hole again. This, as he says, at another point in his testimony, was about three or four days after the pole that was to occupy the hole had been taken away, and he says that he never afterwards for the intervening eight or nine years saw or noticed the hole again, although he passed there with some frequency. Another near neighbor testified that she had not seen or noticed the hole until the injury, and the plaintiff herself who had lived there the whole while said she had not seen it, that there was nothing in the situation to attract her attention to it, and she explained that the reason therefor was that "the grass had lapped over it like Bermuda as carpet grass will;" and all the neighbors who testified on the point are in agreement that the existence of the hole was not observable, and gave the stated reasons therefor.
Since then all the neighbors, including the plaintiff herself, who had lived immediately adjacent, all the intervening years had not observed or been conscious of the existence of the hole, the same having been covered over with plank and dirt and by the lapping over it of carpet grass, it must follow that, as to a danger of this nature, the town cannot be charged with the neglect of ordinary care to discover what other persons constantly thereabout, including the nearest neighbors, had not discovered in all these years. The fact that mere passers-by did not observe or discover a dangerous defect is not sufficient to relieve a municipality of constructive notice; but, if the defect or danger be such as not to be observable by those who constantly pass day by day or who for years have lived and labored at the location in question, constructive notice cannot be charged upon the municipality unless the danger was the result of faulty work by the municipality itself. 43 C.J., pp. 1051, 1052. It further follows that, if the town is to be held liable, it must be on the theory that, within the three or four days from the time of the removal of the pole until the hole was covered up by Benton, the town should have discovered the hole and should have filled it. But no such extraordinary and rigid duty can be imposed upon a town in following up in such minute detail the construction work of a public utility, while the work is going on and is yet in an unfinished state of its progress, especially as to a small town, as we know this to be from the public census of which we take judicial knowledge, and in a remote part and on a little used street, as the testimony shows the location and the street to have been. The peremptory instruction for the town was properly granted.
It is sought to hold the appellee Southern Bell Telephone Telegraph Company, because in 1926, some two or three years after the digging of the hole and leaving it unfilled by the Cumberland Telephone Telegraph Company, the latter sold out to the former, and in that conveyance the Southern assumed all the "debts and other liabilities" of the Cumberland. If we admit, but for the sake of the argument only, that it thereupon became the duty of the Southern to make an inspection of all the grounds and works with which the Cumberland had theretofore been concerned, such an inspection made with ordinarily reasonable care would not have disclosed this hidden hole, according to the evidence in this case and the reasonable inferences to be drawn therefrom. And since the peremptory instruction for the Southern Company was properly granted for the stated reason, it is not necessary to examine the other grounds which have been submitted by that company in support of the action of the court.
Affirmed.
ON SUGGESTION OF ERROR.
A post hole was dug in the ground near the sidewalk about ten years before this suit was brought; it was about two and a half feet deep and a foot in diameter. The purpose for which it was dug was abandoned. Three or four days after it was dug it was covered over with planks, and the planks covered with dirt. The grass grew over it so that it looked about like any other part of the surrounding ground. It was in that condition and had been for several years before appellant was injured. Appellant contends that this hole was a public nuisance, although its presence was not observable and was not ascertainable by reasonable inspection. A public nuisance is an annoyance to the public. In order to be a public nuisance, it must affect the rights enjoyed by citizens as a part of the public; that is, the rights to which every citizen is entitled. 46 C.J., pp. 645, 646, sections 1-3.
Suggestion of error overruled.