105 So. 861 | Miss. | 1925
The city of Jackson demurred to the declaration on the ground that the city is in no way responsible for the acts complained of, and the acts complained of are within the governmental scope of its duties and are not such as are *667 imposed on its liability. This demurrer was sustained, the plaintiff declined to plead further, and the suit was dismissed, from which action of the court this appeal is prosecuted.
Appellant contends that the city in operating its park and in maintaining its zoo therein is liable for injuries resulting from the negligence of servants or other employees of the city; that the maintaining of a park and a zoo therein are mere corporate functions and are not governmental functions within the meaning of the law that exempts municipalities from liability for the negligence of their servants and officials in the performance of governmental functions. Counsel for appellant relies upon the following cases: Norberg v. Hagna,
Counsel for the appellee cites and relies on 19 R.C.L. 1111; 4 Dillon on Municipal Corporations (5th Ed.), par. 2890;Louisville Park Commissioners v. Prinz,
These lines of cases represent conflicting views of the courts upon the question as to liability for the negligence of a municipality in properly maintaining its streets and parks, and generally class parks in accordance with the alignment of the particular courts as to the liability of a municipality for negligence in maintaining its streets and roads. What is known as the Massachusetts line of cases, following the supreme court of Massachusetts, holds that cities are not liable for negligence in making streets and roads because in such cases a municipality is exercising governmental functions as distinguished from municipal, corporate functions. What is known as the New York rule follows the decisions of that state upon the liability of a municipality for negligence in maintaining its streets, holding that it is liable for negligence in failing to keep its streets in proper condition, and generally classes parks with streets and roads upon such question, and holds that a municipality is exercising its corporate functions in such cases.
The state of Mississippi is in alignment with the New York rule in so far as liability for negligence in keeping the streets in repair is concerned. See Whitfield v. City of Meridian,
On the other hand, the state holds that a city is not liable for injuries inflicted by its fire department on the ground that in operating its fire apparatus and fire department, it is in the discharge of a governmental duty, exercising a governmental function, and is not liable for the negligence of its employees in such operation. Alexander v. City of Vicksburg,
In the case of the City of Pass Christian v. Fernandez,
By statute, cities are given the power to establish parks and may issue bonds to purchase land and equipment therefor under certain circumstances. There is no specific statute giving the city power to operate a zoo and to keep *670 ferocious and dangerous animals therein, but such power is implied from the grant of power to maintain parks.
It seems to us that the rule making it the duty of the city to exercise reasonable care to make its parks reasonably safe places for people to resort to, and making the city liable for negligence, is the better rule. Certainly it would not be the rule of wisdom to permit a city to fill its parks with dangerous and ferocious animals without having it exercise a high degree of care, if not absolute liability in keeping them safely confined. It is insisted by the appellee that the zoo is a part of the education of the public, and that educating the people is a governmental function, and that no liability exists against the city for negligence in this regard.
It cannot be the law that the city can place in its parks ferocious and dangerous animals by which the safety, and even the lives, of the public would be endangered without requiring the city to keep such animals securely confined. As a general rule persons having animals wild by nature and of ferocious disposition are required to keep such animals confined absolutely, or pay for any damage sustained by a failure so to do. This court held in Phillips v. Garner,
While the city may be maintaining the zoo for educational purposes, it is not such an education as the city is required by law to furnish to the public. There is no mandatory duty upon the city either to maintain a park or to keep a zoo therein. The right is permissive rather than mandatory, and we think when the city undertakes to maintain a zoo and to keep therein dangerous and ferocious animals, it must be held to the strict duty of keeping them safely, and that it was negligence on the part of the keeper to chain the bear in the present case in the open park with a chain six or ten feet in length tied to the *671 bear, giving it such a range, and therefore capacity to do harm, of the circumference of a circle of which this chain is the radius.
The city next contends that it is not liable because the plaintiff was an adult in the possession of her mental faculties, and must of necessity know of the dangerous character of a bear, and that her negligence in placing herself within reach of the bear was the sole proximate cause of her injury.
Formerly contributory negligence defeated a right of action even though the defendant was negligent with reference to the matter complained of, but section 502, Hemingway's Code (Laws of 1910, chapter 135), changes the rule; and where negligence exists in both the plaintiff and defendant with reference to the matter complained of, it no longer defeats the action, but merely diminishes the damages suffered in proportion to the amount of negligence attributable to the person injured. By section 503, Hemingway's Code (Laws of 1910, chapter 135), these questions of negligence and contributory negligence are for the determination of the jury.
We think this is a case for the jury, and the judgment of the court will be reversed, and the cause remanded for a new trial.
Reversed and remanded.
