Opinion
No. 32393.
November 30, 1936.
1. MUNICIPAL CORPORATIONS.
In action by pedestrian against city for injuries sustained in street in fall into depression connecting with catch basin opening into storm sewer on ground depression was negligently constructed, evidence concerning number of catch basins in city and average cost of construction held irrelevant.
2. MUNICIPAL CORPORATIONS.
In action by pedestrian against city for injuries sustained in fall into depression connecting with catch basin opening into storm sewer on ground depression was negligently constructed, evidence held admissible to show that depression in question was constructed according to accepted and approved engineering practices adapted to conditions at such location.
3. MUNICIPAL CORPORATIONS.
In action by pedestrian against city for injuries sustained in fall into depression connecting with catch basin opening into storm sewer on ground depression was negligently constructed, evidence held inadmissible to show that other depressions leading into other catch basins in city were similarly constructed, since negligence, if any, was not excused by repetition of negligent acts.
4. WITNESSES.
In action by pedestrian against city for injuries sustained in fall into depression connecting with catch basin opening into storm sewer on ground depression was negligently constructed, plans for construction of catch basin on street in other part of city held inadmissible to contradict testimony of pedestrian's witness who was supervising such work where surrounding conditions in such other part of town were wholly different, since matter was collateral.
APPEAL from the circuit court of Hinds county. HON. J.P. ALEXANDER, Judge.
Barnett, Jones Barnett, of Jackson, for appellant.
The court erred in admitting evidence, over the objection of the appellant, for the purpose of comparing the auxiliary depression in question with others in the city of Jackson.
It was error to admit, over the objection of the appellant, Exhibit "D" showing PWA or government approved plans for the construction of catch basins on West Capitol street in the city of Jackson.
Appellee was allowed, over objection, to introduce evidence that there were other depressions as bad as, or worse than, the one in question, thereby conveying the impression to the jury that if there were other auxiliary depressions in the city of Jackson as dangerous or defective as the one in question, then appellee should be absolved of liability.
Stamps v. Polk, 143 Miss. 551, 108 So. 729; Tucker v. Donald, 60 Miss. 460.
They did not prove or attempt to prove that conditions were similar as to the amount of pedestrian traffic over any of the places they sought to compare with the auxiliary depression in question. If they had done so and had shown that others had stepped in other places of similar construction and under similar circumstances with no ill efforts resulting therefrom, there would have been some reason in the comparison, but it certainly is improper to try to prove that one place is not negligently constructed because a dozen others are similar in construction to it.
For the purpose of proving or disproving negligence with respect to the particular defect or obstruction which caused the injury, evidence of similar defects, obstructions, or conditions existing at other places is ordinarily inadmissible.
43 C.J., page 256, art. 2021, page 1252, art. 2017; 22 C.J., page 158, art. 89; 10 R.C.L., page 927, art. 91, page 944, art. 113; City of Birmingham v. Crane, 175 Ala. 90, 56 So. 723.
Municipalities must keep streets in a reasonably safe condition.
Brynes v. City of Jackson, 105 So. 861, 42 A.L.R. 254; 13 R.C.L., pages 468 and 516; Brahan v. Meridian Ry. Co., 121 Miss. 269, 83 So. 467; Whitfield v. Meridian, 66 Miss. 570, 4 L.R.A. 834, 14 Am. St. Rep. 596, 6 So. 244; Nesbitt v. Greenville, 69 Miss. 22, 30 Am. St. Rep. 521, 10 So. 452; Carver v. Jackson, 82 Miss. 583, 35 So. 157; Pascagoula v. Kirkwood, 86 Miss. 630, 38 So. 547; Pass Christian v. Fernandez, 100 Miss. 76, 39 L.R.A. (N.S.) 649, 56 So. 329; Saxon v. Houlka, 107 Miss. 161, 65 So. 124; Vicksburg v. Harralson, 136 Miss. 872, 39 A.L.R. 777, 101 So. 713; Atkinson v. Decatur, 131 Miss. 707, 95 So. 689; Bell v. City of West Point, 51 Miss. 263; Natchez v. Lewis, 90 Miss. 310, 43 So. 471.
Green, Green Jackson, for appellee.
The sole error argued here for reversal of this case is with reference to the admissibility of evidence offered by the city as follows: First, cost of constructing catch basins; Second, evidence of construction of other catch basin inlets; and, third, the offering of plans and specifications for the construction of catch basins on West Capitol street. All of this testimony was offered in response to other testimony that had been offered in evidence by the plaintiff through the witness, M.H. Keele, and in response to testimony elicited by counsel for plaintiff on cross-examination.
The witness, Keele, on cross-examination, stated positively that the catch basin and drain involved in this accident was more dangerous than any other in the city of Jackson, thereby intimating to the jury that this drain and inlet was a dangerous trap that the city had set at this particular place. Then he stated that he was the engineer in charge that prepared the plans and specifications for the construction of certain catch basins on West Capitol street from Livingston Park to the overhead bridge, which project was a Public Works Administration Federal Government Project, and he was asked to compare those which he had constructed as to grade, line and method of construction with the one involved in this accident. Then, for purposes of impeaching his testimony and explaining the same, we offered the testimony by Mr. Campbell of the actual drawings of this inlet involved in the accident, together with the measurements on ten of the inlets or drains on West Capitol street constructed by Mr. Keele, and the plans and specifications prepared under the direction of the witness, Keele. Also we offered in evidence drawings and details of other inlets to contradict the testimony of Mr. Keele that this inlet, involved in the accident, was the most dangerous in the said city of Jackson. We submit that under familiar rules, we had a right to impeach this witness' testimony and to explain the testimony which he had given.
Stamps v. Polk, 143 Miss. 551, 108 So. 729; Lanham v. Wright, 164 Miss. 1, 142 So. 5.
The testimony and evidence which we offered, and about which complaint is now made, bore directly on the issue of whether or not the catch basin drain in question was dangerous, and whether it had been properly constructed according to plans and specifications recognized in the engineering profession as correct, and particularly the plans and specifications prepared under the supervision and control of the witness, Keele.
28 R.C.L. 620, Witness, sec. 208.
Other than as to the admissibility of all of this evidence showing conditions at other places in the city of Jackson for purpose of comparison by the jury to determine whether or not the catch basin drain involved in this accident was dangerous, and whether or not it had been properly constructed and maintained, is that this court has held that evidence of other accidents at the same place may be introduced to show notice of negligence.
Crawford v. City of Meridian, 154 So. 888.
The defendant was entitled to a verdict and judgment under the whole record, regardless of the admissibility of the testimony about which complaint is here made.
It is generally held that a municipal corporation is not liable for injuries to persons or property resulting from the adoption of an improper plan for a public improvement, at least where the defects in such plan are due to mere error of judgment.
19 R.C.L. 1091.
If, as shown by this record, there was any error on the part of the city authorities in the construction and maintenance of the drain in question, it was purely an error of judgment in the adoption of the plan for the construction of the drain, for which, under this general rule, there can be no liability.
19 R.C.L., pages 1111, 1117, 1121, 1122 and 1124; 9 R.C.L. 620 and 621, sec. 7; Cain v. City of Jackson, 169 Miss. 96, 152 So. 295; Yazoo City v. Birchett, 89 Miss. 700, 42 So. 569; Bell v. City of West Point, 51 Miss. 262; Vicksburg v. Hennessey, 54 Miss. 391, 23 Am. Rep. 354; Whitfield v. Meridian, 66 Miss. 570, 6 So. 244; Howard v. City of Jackson, 92 Miss. 720, 47 So. 379; Mackey v. City of Vicksburg, 64 Miss. 777, 2 So. 178; Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452; Butler v. City of Oxford, 69 Miss. 618, 13 So. 626; Walker v. Vicksburg, 71 Miss. 899, 15 So. 132; Natchez v. Shields, 74 Miss. 871, 21 So. 797; Jackson v. Greenville, 72 Miss. 220, 16 So. 382; City of Jackson v. Carver, 82 Miss. 583, 35 So. 157; Pascagoula v. Kirkwood, 86 Miss. 630, 38 So. 547; Natchez v. Lewis, 90 Miss. 310, 43 So. 471; Hattiesburg v. Geigor, 118 Miss. 676, 79 So. 846.
In actions against municipalities by third parties for the negligence of its firemen, the municipality has been held not liable for the reason that in maintaining and operating a fire department the city was performing a governmental function.
Cunningham v. City of Seattle, 42 Wn. 134, 84 P. 641, 4 L.R.A. (N.S.) 629, 7 Ann. Cas. 805; Alexander v. City of Vicksburg, 68 Miss. 564, 10 So. 62; Meridian v. Beeman, 166 So. 757.
In the instant case the place at which Mr. Wilkinson attempted to cross the street was constructed for only one purpose, that of carrying excess water and diverting it into the storm sewers. It was not a place for pedestrians to walk. Proper street walkways at intersections were provided, as shown by the testimony of Mr. Wilkinson, who recognized that he had crossed the street, or attempted to cross, before he reached the regular walkway provided for that purpose.
Hardin v. City of Corinth, 105 Miss. 99, 62 So. 6; Meridian v. Crook, 109 Miss. 700, 69 So. 182; Higginbottom v. Burnsville, 113 Miss. 219, 74 So. 133; Gulfport Miss. Coast Traction Co. v. Manuel, 123 Miss. 266, 85 So. 308; McComb City v. Hayman, 124 Miss. 525, 87 So. 11; Pomes v. McComb, 121 Miss. 425, 83 So. 636; Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811; Warren v. Town of Booneville, 151 Miss. 457, 118 So. 290; Daniels v. City of Jackson, 127 So. 584; City of Jackson v. Clark, 152 Miss. 731, 118 So. 350; Maxedon v. City of Corinth, 155 Miss. 588, 124 So. 795; City of Natchez v. Cranfield, 155 Miss. 540, 124 So. 656; Dow v. D'Lo, 169 Miss. 240, 152 So. 474; Senatobia v. Dean, 157 Miss. 207, 127 So. 773; City of Lumberton v. Schrader, 158 So. 77; Thomas v. City of Lexington, 168 Miss. 107, 150 So. 816; Vicksburg v. Scott, 168 Miss. 572, 151 So. 914; Greenville v. Lowry, 172 Miss. 118, 159 So. 121; Quinn v. Stedman, 146 A. 618, 65 A.L.R. 375; National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724, 157 So. 91.
This is an appeal by D.W. Wilkinson, plaintiff in the court below, from the verdict of a jury and judgment entered thereon in favor of the city of Jackson, in an action for personal injuries alleged to have been received by him on account of a defect in a street of said city.
Appellant alleged in his declaration that, on an occasion when East Capitol street was blocked against vehicular traffic, and a very large crowd of people was assembled in that street for the purpose of viewing election returns which were being projected onto a screen a short distance east of the intersection of President street and East Capitol street, he slipped and fell into an auxiliary basin-like depression connecting with a catch basin opening into the storm sewer under the street or sidewalk. It was further alleged that appellant was caused to slip and fall into the depression in the street on account of the unusual and abrupt declivity thereof, and that on account of the size and abrupt slope of this basin-like depression from the level of the street, it constituted a dangerous defect therein, and that in the original construction of this depression or basin, and in its failure to repair the defect therein, the city was grossly negligent.
The proof shows that the depression and catch basin in question are near the northeast corner of the intersection of President and East Capitol streets within the business district of the city, and immediately adjacent to a bus stop. The size, slope, and general character of construction of this depression and catch basin were given in great detail by reference to a map or drawing thereof, which is not before us; but we understand from this testimony that the depression is approximately six feet long, adjacent to the curb, and extends out into the street about two feet from the face of the curb at right angles from the center of the catch basin. The slope or decline of the depression from its outside borders to the point where it enters the catch basin was described by measurements at various points of its depth from the level of the curb. The jury was taken to the scene of the alleged accident, and, in determining whether or not the depression was negligently constructed, they had the benefit of their observations thereof.
Appellant first assigns as error the admission of testimony showing the number of catch basins in the city of Jackson, and the average cost of constructing such basins. The question at issue was whether or not the depression into which the appellant fell was negligently constructed and maintained, and we think the matter of the cost of constructing catch basins throughout the city was immaterial and irrelevant, and that the objection to this evidence should have been sustained. But we do not decide that, for this error alone, the judgment of the court below should be reversed.
The appellant next complains of the admission of evidence comparing the auxiliary depression and catch basin in question with others in the city of Jackson, and of the admission of certain PWA plans for the construction of catch basins on West Capitol street in said city.
The evidence shows that the city adopted no plans and specifications for the size and grade of the depression leading into the catch basins, but that matter was left to the judgment of the construction engineers, having in view the rainfall, elevation, grade of the streets, amount of traffic, and surrounding conditions, and it was competent to introduce evidence showing that the depression in question was constructed according to accepted and approved engineering practices adapted to the conditions at that point. We do not think, however, that it was permissible to show that depressions leading into other catch basins were similarly constructed, as the negligence, if any, in the construction of the particular depression would not be excused or nullified by repetitions of the negligent act in the construction of inlets or depressions at other points in the city. 43 C.J. 1256; 10 R.C.L. 944. Under this view, neither testimony comparing the construction of other depressions and catch basins with the one in question, nor the plans and specifications prepared or supervised by the appellant's witness Keele, for the PWA project on West Capitol street in the city of Jackson, were admissible. It is argued that these PWA plans were admissible for the purpose of contradicting the testimony of the witness Keele, as to the alleged defective and negligent construction of the depression here involved, and the type of construction approved by him in another part of the city, as developed on his cross-examination. The type of construction of basins and depressions on West Capitol street, where surrounding conditions were wholly different, was immaterial and collateral to the issue involved, and it is not permissible or competent to impeach or contradict a witness about an immaterial or collateral matter. Cofer v. State, 158 Miss. 493, 130 So. 511, and authorities there cited.
For the errors indicated, the judgment of the court will therefore be reversed and the cause remanded.
Reversed and remanded.