Gulfport & Mississippi Coast Traction Co. v. Manuel

85 So. 308 | Miss. | 1920

Ethridge, J.,

delivered the opinion of the court.

The appellees sued the city of Biloxi and the Gulfport & Mississippi Coast Traction Company for damages occasioned by the death of William Manuel, the husband of the plaintiff Eugenia Manuel and father of the other plaintiff. William Manuel’s death was caused by a violent collision with a post situated within the right of way of a street of the city of Biloxi, which post was used as a. guy wire post to support the trolley wire of the Gulf-port & Mississippi Coast Traction Company which operated an electric street car line along the said street. The pole which caused the death of Manuel was situated outside of the traveled portion of the street but some fourteen feet from the property line on the south side of the street. The street from property line to property line was about thirty-seven feet. Near the center of the street was a shell road seventeen and seven-tenths feet wide which was the traveled road for vehicles. . The electric car line lay between the shell road and the north property line of the street, and the record shows that the street was on a level with the tracks, and the grass was short along the railroad tracks. On the south side of the shell road the grass and weeds had grown up from several inches to a foot or two in height and was not ordinarily traveled by vehicles. It was in fairly good shape for public travel except for being overgrown with grass and weeds. There was no sidewalk on the south side of the street, but a footpath south of the pole in question, and the sidewalk had been laid up the street for some distance above the pole, and if extended would have left the pole some seven or eight feet between the sidewalk and the traveled shell road. Within this space the traction company was directed by the city to place its guy poles, and they were placed in accordance with the direction of the city and had been in the street at the point where located for twelve or fifteen years prior to the injury. On the afternoon in question, the deceased ivas coming down a street which intersected the street where the post was situated at practically right angles and was running his motorcycle at a high rate of speed, the record shows from thirty-five to forty-five miles per hour. The proof shows the street was in a thickly settled community and considerably- traveled. Evidently in making the turn into the street the motorcycle on account of the rate of speed went further to the south than its owner calculated, or else he lost control of the machine and ran into the said post, traveling at a high rate of speed, and the motorcycle was wrecked and the deceased badly bruised and mangled by reason of the violent contact, from which injury he died shortly. There are several grounds assigned for reversal of the case, but we deem it necessary to notice only one, to wit, the refusal of the peremptory instruction for the defendant.

It is insisted by the plaintiff that it was negligence for the city and the traction company to erect within the limits of the street the poles in question; that the street must be kept in a reasonably safe condiiion for travel. While the street must be used for public purposes, it is not necessaiy for the entire space to be kept in condition for travel. The city may lawfully use the street for the construction of sewers, for drainage, to lay gas or water pipes, or to erect poles or string wires for electric lights, or to construct a wharf at the terminus of the street, or convert a promenade into wharves, or set apart for a boulevard a portion of a street not devoted to'business purposes. 28 Cyc. 853-.

It is permissible for the city to set apart a portion of the street for the erection of poles to support light, telephone, and trolley wires. The electric street car system is a convenience and necessity which serves the public interest, and it is not negligence to erect .poles between the sidewalk and the traveled parts of the street. The traveled part of. the street was practically eighteen feet wide and is sufficient for the travel according to. the record before us. The pole in question was located some three and one-half feet beyond the egdes of the traveled way as ordinarily used by the traveling public! The extent of the obligation of the city in working its streets is to keep them reasonably safe for general use. It is not required to have them in such condition as to insure the safety of reckless drivers. Walker v. Vicksburg, 71 Miss. 899, 15 So. 132; Butler v. Oxford, 69 Miss. 618, 13 So. 626; Nesbitt v. Greenville, 69 Miss. 22, 10 So. 452, 30 Am. St. Rep. 521. A user of vehicles is not entitled to the entire street from property line to property line. The street not only serves the needs of the traveling public, but serves also the purpose of furnishing the public the conveniences above set out.

In the ease of Butler v. Oxford, supra, the injury occured by a runaway animal which became frightened at an obstacle, departing from the traveled or beaten track about six feet on one side where there was a depression in the street, and the court held that the traveled way being reasonably safe, and the slope therefrom not being sufficiently great to be dangerous under ordinary circumstances, the accident was not to be attributed to the defect in the street, but the fright of the hor'se and his sudden veering to one side.

The statutes of the state limit the speed of motor vehicles on highways situated as this one was to fifteen miles per hour, and it is manifest from the record that the injury was caused by the recklessness of the deceased .in undertaking to round a curve, or turn at an intersection of streets, at a high and dangerous rate of speed. The pole was situated outside of the traveled way, and it was not negligence to permit the pole to be erected as it was in this case. We think the record fails to show liability against the appellants, and the judgment of the court below will be reversed, and judgment entered here for the appellants.

Reversed, and judgment here for the appellants.

Reversed.