Lead Opinion
delivered the opinion of the court.
This is an appeal by the city of-Vicksburg from a judgment against it for fifteen hundred dollars in favor of Dr. H. H. Harralson as damages for personal injuries received by him on account of being “bumped” in his automobile whe nhe was driving over a “bumper” placеd in Drummond street by the city authorities for the purpose of warning auto drivers of the danger of a street intersection. There was a peremptory instruction given in the lower court to find for the plaintiff as to liability, and the question of amount of damages, together with the question of contributory negligence with reference to diminishment of damages, was submitted to the jury for their decision.
The statement of the case as appears' in the appellant’s brief seems to be corrеct, and we shall adopt it, and here quote it as follows:
“This suit was instituted by D'r. H. IT. Harralson against the mayor and aldermen of the city of Vicksburg in the circuit court of Warren county, Miss., to recover damages for alleged personal injuries receivеd by him in driving his automobile over what is known as a ‘bumper, ’ which was built into- Drummond street 'fifty-four feet south of the corner of Mulvihill and Drummond streets, in the city of Vicksburg. In paving both of the streets named the mayor and aldermen caused to- be constructed two ‘bumpers,’ one of which was built into the pavement on Mulvihill street 'which intersects Drummond street fifty-four feet east from the eastern line of Drummond street, and the other ‘bumper’ was built into Drummond street fifty-four feet south of the southeast corner of Mulvihill and Drummond streets. The оriginal -‘bumpers’ proved unsatisfaetoiy, and were regarded dangerous and, upon complaint being made by citizens, the bumper on Mulvihill street was Removed, and a new bumper was built into Drummond street, as above stated.
*881 “The second bumper on Drummоnd street, which is the bumper complained of, was constructed on August 22, 1923, six days prior to Dr. Harralson’s accident, and its dimensions were five inches high in the center, and five feet wide at its base, and it was rounded from the highest point in the center on each side to a point level with the surface of the street.
“The bumper was placed or installed on Dirummond street fifty-four feet south of the southeast corner of Drummond and Mulvihill streets in order to warn automobile divers of the danger of collisions at this street intersection.
“The appellee, Dr. Harralson/has lived in the locality where this bumper was built for about two years, and until June, 1923, he lived a short distance south of and in the same block where the bumper was located. On August 28, 1923, about 9 o ’clock in the morning, he was driving north on 'Dirummond street to his office in the city of Vicksburg, and he claims that, without knowledge of the existence of the bumper in the street, and without seeing it or the sign marked ‘bumper’ near the east curbing of the street, and fiftjr-four feеt south of where the bumper was located, he drove over the bumper, and was forcibly thrown against the steering wheel of his car, thereby causing a dilatation of his heart. The evidence discloses that Dr. Harralson had some knowledge of the condition of the street at the point where the injury occurred, and that he had passed the point where this and the originhl bumper was built several times prior to August 28, 1923, the date of his alleged injuries. ’ ’
It is conclusively shown from the record that Dr. Harrаlson had some knowledge of the two bumpers placed in the streets some time before the second bumper on Drummond street, which caused the injury, was installed, but he was under the impression the bumpers had been removed when he drove down the street on the morning *882 he was hurt. He testified that he was driving in a reasonable and careful manner, at a lawful rate of speed, and that he did not see the bumper until he was within a few feet of it and was unable then, to stop his car or reduce his sрeed so as to prevent being injured as he went over it. He said that he did not see the signboard some fifty feet from the bumper, although he was looking and operating his car with due care.
The sign which was placed on the grassy part of the sidewalk contained the word “bumper,” and this was the only warning to him, unless he had seen the bumper itself in time to have checked his car and avoided the bump which seriously injured him. The record discloses that Hr. Harralson had some general information with rеference to bumpers being used in the National Park, and perhaps upon some other highways, but he did not know of the particular bumper here involved until he had run over it.
The record shows, and it is admitted in the argument of the appelant, that thе device called a “bumper” was purposely placed in the street to bump and injure persons traveling over it in automobiles, unless they saw it in time and slowed down to such an extent that the car would go over it without bumping the occupаnts therein. It is shown to have been a dangerous contrivance or obstruction intentionally placed in the street by the city, and the record indisputably reflects the fact that on account of the deceptive nature of the device most any driver of a car would likely go over it without seeing it, unless he was especially looking’; for it, or had his attention called to it in some way. It was dangerous to go over, even at a lawful rate of speed, and is admitted "to be exceedingly dangerous when crossing it at an excessive rate of speed.
The appellant, city of Vicksburg, contends there is no liability in the case because the city, in its governmental capacity, had the right to install the bumper as a matter *883 of public safety in order to warn automobile drivers of the danger of approaching, the street intersection; that the method of warning against the danger at a street intersection is a reasonable one; and that no pеrson driving a car over the bumper would be injured if they saw it, which they should do, and reduced the speed to such an extent as to eliminate the bump or jolt in crossing over.
It is further contended the city had the right to obstruct its street with such a device, if donе in order to prevent the danger of injury to persons at the intersection of streets, and that bumpers are placed in the National Park and upon other highways of which the.appellee should, and did, have knowledge, and that the aрpellee 'knew, or ought to have known, of this particular bumper on Drummond street, and that it was his sole negligence in failing to observe it and reduce his speed in crossing it that caused the personal injuries complained of in the case.
We do not think there was any question of fact to be passed upon by the jury because there is no material conflict in the evidence, and therefore the peremptory instruction on liability given for the plaintiff was proper, or else a peremptory instruction should have been given in favor of the city. The atnpunt of damages and ñio dimiuishment, if any, on account of contributory negligence, was submitted to the jury. 1
We are unable to agree with the contention of the аppellant. We do not think the city had the right to place a dangerous device or obstruction in its street making it unsafe, and which would likely injure persons traveling in automobiles over it. The purpose of the bumper was to bump and injure persоns in automobiles crossing over it, even at a lawful rate of speed, who might fail to see it or become aware of its presence until they were so close that they would be unable to reduce the speed and prevent an injury when crossing it.
A driver of a car might be using reasonable care and not see the device, unless he was looking for it, because *884 liis attention might be reasonably and necessarily occupied with reference to other objects, vehiсles, or conditions at that point; or he might in an ungarded moment of forgetfulness, even though he had previous knowledge that the bumper was located at that place, run over it, and be precipitated and bumped in his car, which jolt might under sоme circumstances of high speed cause great bodily ha.rm and serious consequences.
This scheme or method of warning drivers appears to us to be unreasonable, too drastic, and perilous for the purpose intended. Thе method of injuring one person in order to prevent danger to another is wrong in principle, as we see it, and is not such a reasonable regulation for the public safety as is warranted under the law, but is negligence. Creating one danger tо prevent another is not in accord with the public safety — the very thing1 involved and desired. 28 Cyc. 1358, 1350, 1366, 1419B, 1422C, 1427; 13 R. C. L., section 313, p. 384.
It is indeed commendable'for the city authorities to adopt means and methods of preventing injuries to persons by the operatiоn of automobiles, and, when such means adopted are reasonable and commensurate with the evil sought to bo remedied, they should be upheld; and we think there are divers ways and methods of preventing the dangers incident to the street intеrsection in this case besides installing a contraption to injure the the reasonably careful driver who innocently, through momentary forgetfulness, or on account of his attention being directed to some other proper and incidentаl object or circumstance at the time, runs over the bumper before he has a chance to reduce the speed of his car. The driver may assume the street is reasonably safe for travel, and is not required to use extraordinаry care.
It is argued considerably by the appellant that since the National P'ark has bumpers in its roadways, and that there are other highways upon which bumpers have been *885 installed, this device installed by the city on this paved street ought to be considered as a\ reasonable precaution for the public safety at the street intersection. The character of the bumpers in the National Park, which appear to be gravel elevations, possibly might be seen and аppreciated by the driver quite a distance, but not so likely on a paved street which is smooth and inviting to the traveler. ’ •
However, the fact that the government! has adopted bumpers in the National Park does not of itself convince us that such a device is permissible, and that a person injured in crossing them would not have a cause of action if a municipality had installed the bumpers. The judgment of government, officials with reference to what device they should place at the streets for the public safety is not infallible. Public officials often in good faith, though negligently, mistake the proper method to be used in protecting’ the public from dangers.
It is our judgement the public authorities have in no case a right to unrеasonably install one unguarded danger to the public in order to prevent another danger to the public, and that seems to us to have been exactly what was done by the city of Vicksburg in the case before us.
In view of these conclusions, the judgment of the lower court is affirmed.
Affirmed.
Dissenting Opinion
(dissenting.)
I dissent from the majority opinion. In my judgment the question of liability was one for the jury. By the construction of the bumper appellant sought to diminish the dangers at the intersection of Drummond and Mulvihill streéts. The question was whether thе bumper increased the dangers instead of accomplishing its purpose. If the dangers were diminished, or if they were not increased, there was no liability. On the other hand, if the dangers *886 were increased, there was liability. There was ample evidence tending to show that the bumper decreased the dangers of the crossing. The bumper at its peak was only five inches thick and had a base of five feet. The surface was smooth and oval.
The intersection of Drummond and Mulvihill streets was what is known as a blind crossing; it was a dangerous crossing;. The city proved by several witnesses that a person driving in an automobile at a reasonable speed, keeping a lookout, could pass over the bumper without inconvenience or injury.