Atkinson v. Town of Decatur

95 So. 689 | Miss. | 1923

Cook, J.,

delivered the opinion of the court.

The appellant instituted suit in- the circuit court of Newton county against the city of Decatur, appellee, seeking to recover damages for personal injuries alleged to have been sustained by him on account of a defective bridge on one of the public streets of the town. The appellee filed its plea of the general issue, and also a special plea, averring, in substance, that the town of Decatur is an incorporated municipality within special road district No. 1 of Newton County; that the alleged defectivé bridge is located on a street of said municipality which is a part of the Newton and Decatur public road; that this public road was built into said municipality, and along said street, by the board of supervisors of Newton county and the highway commissioners of said road district, that the said road district was organized under the provisions of chapter 176 of the Laws of 1914, and amendments thereto, and the alleged defective bridge was built by the said road commissioners, under the supervision of the board of' supervisors, at a cost of more than twenty-five dollars; that at the time of the alleged injury and for some time prior thereto the said street and roád had been maintained wholly by the said highway commissioners under the direction and supervision of the board of supervisors; that the mayor and board of aldermen of the town of Decatur, by an order on the minutes of such board, had consented for such road and bridge to be constructed and maintained by the board of supervisors and highway commissioners, and that the town owed plaintiff no duty to maintain and keep in good repair the said bridge or road for the reason that the duty so to do was wholly upon the county and road district authorities. The plaintiff demurred to this special plea on the ground that it presented no defense, and this demurrer was overruled. The plaintiff declined to plead further, and final judgment dismissing the suit was entered, and from this judgment this appeal was prosecuted.

Can a municipality escape liability for an injury caused by a defect' in a bridge on one of its public streets by reason of the fact that, acting under the provisions of chapter 255, Laws of 1914 (section 7179, Hemingway’s Code), the board of supervisors of the county and the highway commissioners of a special road district have, with the consent of the mayor and board of aldermen of such municipality, assumed jurisdiction over such street, and are maintaining the same as a part of a public road of the county? The road district within the boundaries of which the appellee, town" of Decatur, is located was organized under the provisions of chapter 176 of the Laws of 1914, and the act under which the board of supervisors and the highway commission ers undertook to improve and maintain this street as' a part of the county road system is chapter 255, Laws of 1914 (section 7179, Hemingway’s Code), which-reads as follows:

“Any public highway being constructed, improved and maintained under the provisions of chapter 149 of the Acts of 1910, or under chapter 257, of the Laws of 1912, or under any of the various methods of building good roads authorized by law of the state of Mississippi, where the same shall run or extend into or through any incorporated municipality within the district or districts operating under said act may be constructed, improved and maintained the same within as without the corporate limits of said municipality; provided, however, that with the consent of and in conjunction with the commissioners provided for in said act the said municipality may, out of its own funds, add such street crossings, or make improvements, such as grading, culverts., graveling or other improvements as it may desire. Provided the mayor and board of aldermen shall, by order, spread upon their minutes consent for the work to be don-e by the commissioners.”

Under section 3330, Code of 1906 (section 5827, Hemingway’s Code), a municipality organized under and governed by chapter 99, Code of 1906, is constituted a separate road district with power to compel the male inhabitants of such municipality, within certain ages, to per/ form labor on the streets, or in lieu thereof to pay a commutation tax, and under section 3338, Code of 1906 (section 5835, Hemingway’s Code), the mayor and board of aldermen are granted full jurisdiction in the matter of streets, to open, lay out, and construct the same, and to repair, maintain, pave, sprinkle, adorn, and light the same, and as a necessary incident to this power there is imposed on the municipality the duty to keep its streets in repair and in a reasonably safe condition for travel. As between the municipality and the public this duty rests primarily on the municipality, and it cannot be delegated so as to relieve it from liability for injuries resulting from the nonperformance of the duty. 13 R. C. L., pp. 332 and 355; 28 Cyc., pp. 1344 and 1355.

We recognize the power of the legislature to divest a municipality of control over its streets, but in enacting chapter 255, Laws of 1914 (section 7179, Hemingway’s Code), Ave do not think it was the intention of the legislature to divest municipalities affected thereby of all control over their streets and relieve them of their duty to the public to keep their streets in a reasonably safe condition for travel. While the act authorizes a municipality to consent for its streets to be improved and maintained by the county authorities, there is nothing in the act expressly re.lieving such municipalities of all duty in respect to such streets, but, on the contrary, express provision is made for the municipality, out of its own funds, to make such improvements thereon as it may desire, and we think it is clear that it was not the intention of the legislature to relieve such municipality of liability for a failure to perform its duty to keep its streets in a reasonably safe condition for travel.

It follows from the views herein expressed that the demurrer to the special plea should have been sustained, and therefore the judgment of the court below will be reversed, and the cause remanded.

Reversed and remanded.