Mackey v. City of Vicksburg, 64 Miss. 777

64 Miss. 777 | Miss. | 1887

CoopeR, C. J.,

delivered the opinion of the court.

This is an action brought by an infant of six years to recover from the city of Vicksburg damages for an injury received by him in falling over the precipitous side of a hill near his residence in said city. The declaration states that the city, for the purpose of procuring earth, with which it was then making necessary repairs on its streets, “ did carelessly and unskillfully dig down, grade, excavate, and remove portions of a certain hill or elevation of land in said city known as Sky Parlor Hill, contiguous to the plaintiff’s residence, and so threw the dirt, earth, and rubbish from said hill upon the rear side of said lot or yard of plaintiff’s residence as to enable and invite plaintiff, being a minor of tender years, to wit, of the age of six years, to escape/rom the inclosure around and about said yard and residence; and defendant otherwise dug and graded said hill so as to make a narrow and dangerous pathway up and along said hill leading from and connected with said place of escape to the top of said hill, and so wrongfully and carelessly and negligently permitted the same to be unguarded, unprotected, unsafe, and dangerous while said defendant was engaged in its work, and in such condition as to enable and invite said plaintiff to escape from said yard and along said pathway up the side of said hill; and plaintiff avers that on the day and in the manner aforesaid, by passing over the said place of escape, he hemg such minor of tender years, escaped from the yard and inclosure of his residence and strayed and wandered up and along said pathway to a high point thereon, from which point he fell a great distance, to wit, a distance of seventy-five feet, whereby he was greatly injured, etc., and sustained damage to the amount of fifteen thousand dollars, for which he sues.”

The defendant demurred and assigned for causes:

1. That the declaration shows no cause of action.

2. The declaration shows the plaintiff was an intruder.

3. No duty incumbent on the defendant was violated.

4. The declaration does not show that the plaintiff exercised ordinary or proper care.

5. The injury resulted from plaintiff’s own wrong.

6. The plaintiff was guilty of contributory negligence.

The demurrer was sustained and plaintiff appeals.

Under the first cause of demurrer ii is argued by counsel for the city that it is not shown by the declaration either that the city was the owner of Sky Parlor Hill or was in possession or control thereof. This position is clearly untenable. It is charged that-the city was engaged in the exeavation of the hill', and that the injury resulted' from its failure to guard the dangerous pathway and precipice while it was doing this work. We do”not appreciate the distinction between ownership or possession and' that control over the property which must be inferred from the facts stated. It.is not as though the city was merely taking from the land of another certain earth delivered or sold to it by the owner of the premises, leaving the owner in control of the property and responsible for the dangerous condition into which it might be left by the excavation and grading; the natural and necessary inference is that the city had such control and dominion over the land as to enable it to do the work according to its own direction, and that pro hao vice it was owner thereof..

Whatever conflict of authority may exist upon the extent of the liability of municipal corporations for the torts of its officers and agents, responsibility seems to be universally recognized where the injury arises from the improper use of its private property, held for corporate and not public uses. 2 Dillon on Mun. Corp. 985.

The 4th, 5th, and 6th grounds of demurrer present substantially the same defense — that the plaintiff was guilty of contributory negligence.

- It cannot be inferred as matter of law that the plaintiff, an infant of six years, could be guilty of contributory negligence. Whether, notwithstanding his tender years, precocity of judgment may be shown as matter of fact, sufficient to impute to him appreciation of the danger into which he entered and obligation to avoid it, cannot be determined upon demurrer. There is certainly no presumption of law that an infant of his age is capable of even that slight degree of care and prudence the absence of which in an adult would be the grossest negligence. The plea of contributory negligence is a defense in confession and avoidance of plaintiff’s action, whereby the defendant is saved not by his own freedom from fault, but solely because the plaintiff, being also a wrongdoer, cannot appeal to the law for redress. . If the plaintiff had entered upon the laud of the defendant and done injury there, for such injury he would have been responsible, notwithstanding his tender years; but it is .a totally different thing to say that negligence may be imputed to him. A lunatic or a cow may trespass, but negligence which is a want of reasonable care cannot be predicated of the act of a creature devoid of reason and governed wholly by its instincts. Huchting v. Engel, 17 Wis. 238; R. R. Co. v. Stout, 17 Wall. 660; R. R. Co. v. Gladman, 15 Wall. 401 ; Smith v. O’Connor, 48 Pa. St. 218; O’Mara v. R. R. Co., 38 N. Y. 445; Cooley on Torts 105; Keffe v. R. R. Co., 21 Minn. 207.

The second and third grounds of demurrer may be considered together.; the second is, that the plaintiff was a trespasser; the third is, that, being such trespasser, the defendant owed him no duty.

It is unnecessary to consider whether any liability would have rested upon the defendant if'nothing further had been alleged than that it cut a precipice upon a part of Sky Parlor Hill, and that plaintiff went upon the hill, fell therefrom, and was injured. It is averred in the declaration, and the demurrer admits it to be true, that the defendant deposited the dirt cut from the hill upon the rear of the plaintiff’s lot, by means whereof he was enabled and invited to escape from his inclosure and to go upon the precipitous and dangerous path out along the hill and leading from the place of escape to the point of danger from which he fell. Under these circumstances we think a question of fact is presented which ought to be submitted to the jury. Whether what was done was reasonably calculated to entice a child, following its instincts of curiosity or love of liberty, to escape from the yard and enter upon the dangerous path is determinable as a question of fact and not of law. If the defendant by the exercise of reasonable forethought could have anticipated the probability of the child’s action it should have guarded against the danger by removing the earth or obstructing the pathway. If it failed so to do, it failed in a duty which rested upon it, and is not relieved from responsibility even though the child was a trespasser in going upon the premises. Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Gramlich v. Wurst, 86 Ib. 74; Keffe v. W. Milwaukee R. R. Co., 21 Minn. 207; R. R. Co. v. Stout, 17 Wallace 657.

The judgment is reversed, the demurrer overruled, and cause remanded.