Opinion
No. 30850.
November 20, 1933.
1. MUNICIPAL CORPORATIONS.
Whether warnings against defects in street are sufficient is for jury, where evidence is conflicting or such that reasonable minds might arrive at different conclusions, but is for court where evidence is undisputed and only inference of negligence can be drawn from proved facts.
2. MUNICIPAL CORPORATIONS.
City must exercise ordinary care to keep its streets in reasonably safe condition for use of public.
3. AUTOMOBILES.
City digging seven-foot deep excavation at curve in street and suspending two-inch plank flat side down across portion of street not obstructed by materials, to warn travelers, held negligent and liable for guest's injuries when automobile precipitated into excavation during night.
4. NEGLIGENCE.
Host's negligence in operating automobile without proper brakes and driving into street excavation held not imputable to guest, having no notice of defect in automobile or street.
5. AUTOMOBILES.
City's negligence in leaving seven-foot deep street excavation without proper warning signals proximately contributed to guest's injury when automobile precipitated into excavation during nighttime.
APPEAL from Circuit Court of Holmes County.
A.M. Pepper and P.P. Lindholm, both of Lexington, for appellant.
Where a city had dug a large ditch seven feet deep and eight feet wide and thirty feet long and extending entirely across a frequently traveled street where same ran around a high embankment and through a sharp curve, and when night came its employees left the excavation uncovered, unlighted, and unguarded and wholly without reasonable notice to a traveler in a motor car at night, but relied on a further defect and obstruction only fifteen feet from this pit-fall made by the employees by placing a heavy plank two inches thick, twelve inches wide, and eighteen feet long across the street with the small two-inch edge showing toward the approaching traveler, said obstructing plank, itself, having on it no lighted lantern or other warning, was guilty of negligence as a matter of law. A peremptory instruction against it is proper.
McWhorter v. Draughn, 137 Miss. 515, 102 So. 567; McWhorter v. Draughn, 134 Miss. 247, 98 So. 597; City of Vicksburg v. Haralson, 136 Miss. 872, 101 So. 713; Jordan v. City of Lexington, 133 Miss. 440, 97 So. 758.
The driver may assume the street is reasonably safe for travel and is not required to use extraordinary care.
McWhorter v. Draughn, 134 Miss. 247; McWhorter v. Draughn, 137 Miss. 515; Vicksburg v. Haralson, 136 Miss. 872.
The fact, if it were a fact, that Major Waugh, the driver of the automobile, could have avoided the accident by the exercise of reasonable care would not relieve defendant city from liability if the failure to have proper or sufficient barriers, watchman or warning lights was a contributing cause of the injury. Such a state of facts would simply mean that Major Waugh, the driver, and the city were joint tort-feasors and each would be jointly and severally liable for the tort, neither would be relieved from liability and the liability would be joint and several. It is sufficient that the city's negligence concurring with some other sufficient cause or causes proximately caused the injury.
Westerfield v. Shell Petroleum Corp., 161 Miss. 833; Nelson v. I.C.R. Co., 98 Miss. 295, 53 So. 619, 31 L.R.A. (N.S.) 689; Oliver v. Miles, 144 Miss. 852, 110 So. 666, 5 A.L.R. 357; Waterman-Fouke, etc. v. Miles, 135 Miss. 146; Sawmill Construction Co. v. Bright, 116 Miss. 491; Bailey v. Delta Electric Co., 86 Miss. 634. Ruff, Johnson White, of Lexington, for appellee.
The question of the sufficiency or adequacy of the barriers and/or warnings is purely a question for the jury.
When a municipality negligently permits an excavation to remain in its streets, unguarded by barriers or other devices to warn travelers, it is liable to anyone who falls therein while in the exercise of ordinary care, but, when a municipality has made an excavation in its streets, and erects barriers or other devices to warn travelers, the question of the sufficiency of such barriers or other devices is a question to be determined by the jury.
43 C.J., 1287, note 9; Minot v. Walton, 193 Fed. 768, 106 C.C.A. 466; Baltimore v. Maryland, 166 Fed. 641, 92 C.C.A. 335; Albany v. Black, 214 Ala. 359, 108 So. 49; Stockton Auto Co. v. Confer, 154 Cal. 402, 97 P. 881; Mulligan v. New Britain, 69 Conn. 96, 36 A. 1005; Koontz v. District of Columbia, 24 App. 59; Douvia v. Ottawa, 200 Ill. App. 131; Garentz v. Carroll, 136 Iowa, 569, 114 N.W. 57; Lampton v. Wood, 199 Ky. 250, 250 S.W. 980; Morton v. Frankfort, 55 Me. 46; Dolan v. Jacobs Co., 221 Mass. 256, 108 N.E. 939; Brydon v. Detroit, 117 Mich. 296, 75 N.W. 620; St. Paul v. Kuby, 8 Minn. 154; Burton v. Kansas City, 181 Mo. App. 427, 168 S.W. 889; Meck v. Nebraska Tel. Co., 96 Neb. 539, 148 N.W. 325; Corcoran v. New York, 188 N.Y. 131, 80 N.E. 660; Foy v. Winston, 126 N.C. 381, 35 S.E. 609; Wells v. Lisbon, 21 N.D. 34, 128 N.W. 308; Woodward v. Bowder, 46 Okla. 505, 149 P. 138; Clamper v. Philadelphia, 279 Pa. 385, 124 A. 132; Overpeck v. Rapid City, 14 S.D. 507, 85 N.W. 990; Sweet v. Salt Lake City, 43 Utah, 306, 134 P. 1167; Welch v. Petley, 89 Wn. 254, 154 P. 145; Wilson v. Elkins, 86 W. Va. 379, 103 S.E. 118; Ptak v. Kuetemeyer, 177 Wis. 262, 187 N.W. 1000; City of Albany v. Black, 214 Ala. 359, 108 So. 49; Morgan Hill Paving Co. v. Fonville (Ala.), 130 So. 807; Brinson v. City of Mulberry (Fla.), 139 So. 792; Strickfaden et al. v. Greencreek Highway District et al., 42 Idaho, 738, 248 P. 456, 49 A. L.R. 1057; 13 R.C.L. 517, note 16; L.R.A. 1917D, 756, et seq.; Higginbottom v. Village of Burnsville, 113 Miss. 219, 74 So. 133.
Only ordinary or reasonable care is required in respect of placing barriers or warnings.
Conley v. Kansas City, 110 Kan. 95, 202 P. 607; Lincoln v. Calvert, 39 Neb. 305, 58 N.W. 115; Klatt v. Milwaukee, 53 Wis. 196, 10 N.W. 162.
What will constitute such care depends upon the circumstances of each particular case. The test of sufficiency is not particularly or in all cases whether barriers or lights have been used, but whether means employed are reasonably sufficient.
Grider v. Jefferson Realty Co. (Ky.), 116 S.W. 691; Conley v. Kansas City, 110 Kan. 95, 202 P. 607; Carswell v. Wilmington, 16 Del. 360, 43 A. 169; Cody v. Boston, 154 N.E. 753; Chapman v. Boston, 252 Mass. 404, 147 N.E. 840; Compton v. Revere, 179 Mass. 413, 60 N.E. 931; Hunt v. St. Louis, 278 Mo. 213, 211 S.W. 673; Maloney v. New York, 154 App. Div. 608, 139 N.Y.S. 794; Schawe v. Leyendecker (Tex.), 269 S.W. 864; Lombardi v. Bates Const. Co., 88 Wn. 243, 152 P. 1025.
It is often necessary to create obstructions in public streets, and the authorities are not necessarily negligent in so doing.
Shannon v. Council Bluffs, 194 Iowa, 1294, 190 N.W. 951; Rickhold v. Niagara Falls, 213 App. Div. 451, 210 N.Y.S. 676; Williams v. Main Island Creek Coal Co., 83 W. Va. 464, 98 S.E. 511.
A municipality is not an insurer of the safety of persons using the streets thereof. It is required only to exercise ordinary care to keep its streets in a reasonably safe condition for use by persons exercising ordinary care and caution.
Meridian v. Crook, 109 Miss. 700, 69 So. 182.
While the driver traveled at least one hundred feet before he ran into the excavation, he had ample opportunity to apply his brakes and stop the car, and no doubt would have done so had his car been equipped with proper brakes and lights, or on the other land, if he had taken the precaution to look the way he was driving. A municipality is not required to take precautions to provide against such conduct on the part of persons using the streets. In fact, no sort of precaution would avail against such negligent conduct on the part of the operator of an automobile, and we submit that under these facts it was clearly within the province of the jury to determine whether or not the negligent conduct of the driver of the car was the sole proximate cause of the wreck.
Brinkley v. Southern Railway Co., 113 Miss. 367, 74 So. 280, 42 C.J. 872; Bufkin v. Louisville N.R. Co., 161 Miss. 594, 137 So. 517.
Argued orally by P.P. Lindholm and A.M. Pepper, for appellant, and by H.H. Johnson, for appellee.
This is an appeal from a judgment in favor of the city of Lexington in a suit filed by the appellant against it, seeking to recover damages for personal injuries alleged to have been sustained by her when an automobile in which she was riding was precipitated head-on into a ditch or excavation across one of the city streets.
The evidence shows that the city employees, under the direction of the superintendent of streets, were engaged in replacing a wooden bridge or culvert with a concrete culvert. The wooden bridge or culvert had been removed and the ditch across the street excavated to a width of eight feet and a depth of seven feet, extending entirely across the street. The southern side or bank of this ditch had been cut down perpendicularly from the level of the street, and the dirt therefrom was piled along the north side of the excavation. This excavation was at the sharpest point of a ninety-degree curve which began about two hundred feet south thereof and extended eighty feet beyond it to the north. The street throughout the curve is level and has a smooth gravel surface.
Near the south side of the excavation, but off the street on the outside of the curve, there were some water barrels, and lumber for concrete forms, and wheelbarrows; while on the inside of the curve, within ten or fifteen feet of the excavation, there was a pile of gravel about three feet high at its highest point, which extended out into the street, so as to leave only about six or seven feet of the traveled part thereof free of any materials or obstructions so far as the street surface was concerned. When the city employees quit work in the afternoon before the accident the following night, they placed a plank two inches thick, twelve inches wide, and eighteen feet long across the open traveled way. This plank was placed flat, with one end resting on the gravel pile and the other on a small timber on the opposite side of the open part of the street, thus causing the two-inch thickness of the plank to show to travelers approaching from the south. No other warning of any kind was placed to give travelers notice of the obstructions in the street and the dangerous excavation across it.
On the occasion that the appellant is alleged to have been injured, she was riding in an automobile as the guest of the owner and driver thereof. She was on the front seat of the automobile with the driver, while four other persons were on the back seat. About 8:30 o'clock at night this party was riding north along the street on which the excavation was located at a speed of from twelve to fifteen miles per hour. The testimony is to the effect that the automobile lights were in good condition and were burning, but that as the automobile traveled around the curve approaching the excavation the lights shown to the right, or outside of the curve; that there was no plank or other obstruction across the traveled portion of the street; and that without any warning whatever the automobile was suddenly precipitated head-on into the seven foot deep ditch or excavation, thereby injuring the appellant.
The first contention of the appellant is that upon the evidence the appellee was guilty of negligence which contributed to her injury, and that a peremptory instruction on the question of liability should have been granted. As a general rule, the question as to whether or not signals or warnings against existing defects in a street are sufficient is one for the determination of the jury. Such is the case where the evidence is conflicting, or is such that reasonable minds might arrive at different conclusions; but where the evidence is undisputed and only the inference of negligence can be drawn from the proven facts as to the nature or character of the signals or barriers erected as a warning of a defective or dangerous condition in a street, the question of negligence in respect to the particular defect or obstruction or warning signal is one for the court. A city is required to exercise ordinary care to keep its streets in a reasonably safe condition for the use of the public, and in the case at bar we do not think it can be said, in any view of the facts, that the appellee exercised such care in the erection of signals or barriers to warn travelers in the nighttime of the highly dangerous condition of the street in question.
The appellee city of Lexington contends, however, that the accident and consequent injury was due solely to the negligence of the driver of the automobile in which the appellant was riding as a guest. There was evidence tending to show that after the accident the brakes of the automobile were in a defective condition, and it may be said that the evidence as to whether or not the driver of the automobile was guilty of negligence, which contributed to the injury, is conflicting; but, conceding that the driver was negligent in the operation of the automobile without proper brakes, or otherwise, under the facts in evidence here, this negligence was not imputable to the appellant. At the time of the accident the automobile was being operated at a very reasonable speed along a hard surfaced street, and the evidence shows that the appellant had no notice of any defect in the automobile or street, and that she was entirely free from negligence. It seems clear to us that the negligence of the city proximately contributed to the injury, and that the negligence of the driver of the automobile, if any, was merely a concurring or contributing cause which rendered them joint tort-feasors. We think the jury should have been peremptorily instructed to find for the appellant on the question of liability, and that the cause should have been submitted to the jury for the assessment of damages only.
Reversed and remanded.