*1 extent of ex- at least to the his an interest therein lias ownership. penses, if not the injunction dissolving the
The decree of the court below receipts negotiation against warehouse complaint dismissing he therefore af- hill of must firmed.
Affirmed. King.
City v. of Meridian (Division Suggestion 21, B. Dec. Error Overruled Feb. 1942. 15, 1943.) (2d)
[11 So. 205. No. 35186.] 15, (Division 1943.) B. Feb. (2d) No. So. 830.
[11 35186.] *2 Cbvington, & Snow and Jacobson, Robert Wallace R. appellant. for all of Meridian, *6 Reily & all Meri- Riddell, Parker and Williamson & appellee. for dian,
172, *10 Argued by by orally appellant, Snow, E. L. for and appellee. Nate Williamson, for S. opinion
Anderson, J.,P. delivered the court. of the Appellee King brought this action in the circuit court county against City appellant of Lauderdale of Meridian damages injury for to recover an while driv- he received nighttime ing in the the his automobile at intersection of Avenue much Seventeenth and Front two Street* thoroughfares city. judg- traveled of the He a recovered city prosecutes in the of from which the ment sum $2,500, appeal. this principal ground
The for relied on reversal is that the city’s request refusing court in for a directed erred the giving granted the verdict. The of two of instructions plaintiff assigned argued the is also and as error. night plaintiff 12 11 at the was
Between and o’clock driving his automobile east on Front Street and at its
174 Avenue into a with Seventeenth he ran street
intersection Recovery sought injured. on two was barricade and was grounds, (1) intersection was so constructed that the dangerous by city as the to be the maintained to and properly public, (2) traveling whether constructed and city dangerous the it a intersection and was or not was warnings danger adequate post more to one or the due by light or otherwise. was evidence tend- a red There no crossing ing that the of the itself construction to show traveling public. dangerous the issue fact to was The by it the evidence was whether or not should have made guarded by light properly other- was a or been and red prevent collision with barricade on east wise to described. side of hereinafter Seven- Avenue, Seventeenth south, north Front Street teenth runs and and Avenue is west. the intersection Front Street east and West of feet 3 inches east of intersection 54 and while wide, 4 wide. This it by feet inches difference caused is 30 was angle right in a cutdown of feet and inches *11 Front on the east side of the intersection on Street and Along this the south of Front Street. 23 feet and side a barricade wall 11 inches was concrete 3 there erected against high, 4 and this wall on the west feet inches and high, leaving feet was a embankment about the dirt 1% exposed view concrete wall to about 1 foot and 10 inches going wall. was that dirt The result the travel above the east on Front Street directly facing would be the east side of the wall. crossing
Front Street at the and for some distance east straight. west and is only plaintiff
The to accident witness the was the him- light red self. He that there no other testified was or any approach warning the to intersection; of kind of the got within about of that when he 75 or feet inter- the meeting appeared an automobile him section there about lights intersection; the same distance east of the that its brightly was in that unable so his face to see shown he anything else of him; or ahead that the barricade he did barricade; the that he know the existence of not of speed something 20' an to 15 or miles reduced his like and the barricade but nevertheless he ran into over hour, ditqh injury. causing his side, down into a on the east day light a some distance to the That the saw next he burning but if was on intersection, north side of the it injury night see of did and could not it. the his he not opinion question it was a for We of the that the are jury or not in the of care for whether exercise reasonable safety traveling public give city the of the the was due to warning adequate traveling to those east Front on Street they approaching that were the barricade. plaintiff
The to the evidence tended show that himself negligent approaching crossing, was in in the that the ex- safety ercise of reasonable he for his own care should stopped by lights have car when was he blinded the his approaching request the of car. At of the the defendant gave comparative negligence the court a instruction. ground One of the is instructions criticized on that “negligence.” it fails to define It is true the in- that gave “negligence,” struction no definition of neverthe- jury “negligence” it less did inform the that defined was opinion in other instructions. areWe of that that together is All true. instructions read one. as It is are necessary complete not that each shall be one within together complete. but itself, that all shall be That is true of the instructions in this case. The criticism of the plaintiff given other instruction for the is so devoid by ruling merit as not to call for a the court.
Affirmed. Suggestion
On ok Error. opinion J., delivered Alexander, the court on *12 suggestion of error. judgment plaintiff day
A for was affirmed at a former complains upon suggestion of this term. The defendant by of error that law the has been settled in this state 176 which, effect, it in is contended are, decisions
numerous include of City These cases opinion. our by overruled A. 182, L. R. 700, Miss. 69 So. Crook, v. 109 Meridian 525, 124 Miss. 87 So. City Hayman, v. 482; McComb 1916A, 133; Miss. 74 So. Burnsville, v. 113 219, Higginbottom 11; 540, 656; 155 124 So. Cranfield, Miss. of Natchez v. City Miss. 150 107, of 168 So. Lexington, Thomas v. City 474; 152 of 169 Miss. So. D’Lo, Dow v. Town 816; 240, 121; So. Laury, 118, Miss. 159 of v. 172 City Greenville City 379; 175 Miss. So. Co. v. Decell, 251, 166 Standard Oil 384; 42, 176 Matthews, v. 180 Miss. So. of Hazlehurst 293; So. City Tupelo, 816, of 194 v. 187 Miss. Warren 198 379, Town of Miss. So. Lucedale, Brewer v. 374, 532, 3 191 Miss. Clarksdale, of So. 42; Birdsong v. City (2d) 827. that
An cases analysis of the should disclose foregoing- adherence which they expound principle required a to contention. The contrary conclusion to defendant’s a applicable of the statement of reasonable care repetition in not have been sufficient to similar to cases seems of its full The standard care guarantee comprehension. of a in its construction or main- required municipality City in of tenance of its streets was restated carefully “the 121, Greenville v. 159 So. as Laury, 118, Miss. ordinary to exercise care its streets reason- duty keep to by persons exercising safe for use care ably reasonable and caution.” made,
The here that court found contention since this that himself plaintiff care, was not reasonable exercising- city owed him no was made in most of the duty, was in especially urged and v. foregoing cases, Birdsong 191 Miss. City (2d) 3 So. 532, 827, 830, Clarksdale, opinion clarification made of the point, stating: and a “The care imposed measure of on in city is defined anticipated terms of an use and is modified accordingly; care, if the to fulfill this city but has failed measure its to in- negligence concurs with or an contributes *13 177 although person injured jury, he also not the is barred neg- negligence guilty of of his unless, course, was — proximate ligence the was such to constitute sole as jury were In the instant case the authorized cause.” plaintiff’s negligence was did that not find, to and find, injury. of his sole cause the misapprehension from
It the rule arises seems that of tendency “persons” to confuse in the a the word defini city’s duty “person” of the tion initial with who the plaintiff. happens at the moment to be a The conduct subject plaintiff proper inquiry of such not a of unless is city liability previously and until of the has been ad by judged application foregoing an of the rule. This rule is an abstract of statement law. The standard substantive merely duty of is not it care; is reasonable care, more, and reasonably it is reasonable care to maintain its safe condition. But this is not in a streets yet sufficiently definite safety. because we a must have standard of reasonable may Such definition must made, be and be in found the Birdsong supra, municipality case, where it is said, “The right, has in the the construction therefore, and main light expectation of tenance its streets to act the in of physical aspects that the users thereof will look to the things the and natural condition of around them.” See, Supreme Corp. also, Instruments v. 190 Lehr, Miss. 600, (2d) 199 So. So. 242. 294, argument
The here made is that which was answered foregoing plaintiff in the is cases. It this: since was using city duty not reasonable care the owed him no un- der rule set forth. the contention This misconceives the acceptance complete rule and its would reinstate the bar contributory negligence. opinion dissenting City Cf. Laury, supra. of Greenville v. The rule does not mean municipality only that the using is liable to those reason- negligence by able care. Its tois be determined its own without plaintiff, conduct, reference to that of and its liability negligence becomes fixed when such becomes the proximate injury. plaintiff’s cause of A conduct is not negligence city.. adjudging of the initial in
a factor using may the standard less care than or he more He negligent, injury city by required If the rule. is injured regardless party, is liable to the it ensues, using care As reasonable or not. latter was whether *14 plaintiff negligence liability, of the of such the to extent under sec. 511. The relevant factor Code 1930, a becomes city’s appraised negligence not with reference to the is particular plaintiff particular de- accident; nor it is the initially solely to with reference the standard termined of city principle. negligent in the If the as defined care is by plaintiff’s negligence its the becomes con- conduct city negligent by tributory; test if not the abstract the is plaintiff. solely negligence injury of is to the the due principle disarranged is of When the statement the destroys wholly import is Thus the invited. it confusion say, municipality a of the rule to as that contended, is here duty using a to those reasonable care caution owes ordinary keep reasonably to its care streets to exercise frequently safe. Another too is distortion found that plaintiff city provided must exercise such the care “persons phrase exercising reasonable caution. The uses “duty,” hut modifies, reasonable and caution” not care supra: Birdsong “safe.” As in the ex- stated “The case, pression city duty is a brief but definition of the operate deprivation right a of the does not citizen. It sets as city
up a standard under of conduct for the may reasonably which it he hut not a criterion absolved, by unreasonably be which the citizen shall barred.”
Suggestion of error overruled.