101 So. 713 | Miss. | 1924
Lead Opinion
This is an appeal by the city of Vicksburg from a judgment against it for $1,500 in favor of Dr. H. H. Harralson as damages for personal injuries received by him on account of being "bumped" in his automobile when he was driving over a "bumper" placed 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 correct, and we shall adopt it, and here quote it as follows:
"This suit was instituted by Dr. H. H. 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 received by him in driving his automobile over what is known as a `bumper,' which was built into Drummond street 54 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 54 feet east from the eastern line of Drummond street, and the other `bumper' was built into Drummond street 54 feet south of the southeast corner of Mulvihill and Drummond streets. The original `bumpers' proved unsatisfactory, 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.
"The second bumper on Drummond 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 5 inches high in the center, and 5 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 Drummond street 54 feet south of the southeast corner of Drummond and Mulvihill streets in order to warn automobile drivers 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 Drummond 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 54 feet 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 original 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. Harralson 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 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 speed so as to prevent being injured as he went over it. He said that he did not see the signboard some 50 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 Dr. Harralson had some general information with reference 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 appellant, that the device 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 the car would go over it without bumping the occupants 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 to install the bumper as a matter 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 person 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 done 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 appellee 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 amount of damages and the diminishment, if any, on account of contributory negligence, was submitted to the jury.
[1] We are unable to agree with the contention of the appellant. 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 persons 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 his attention might be reasonably and necessarily occupied with reference to other objects, vehicles, or conditions at that point; or he might in an unguarded 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 some circumstances of high speed cause great bodily harm and serious consequences.
This scheme or method of warning drivers appears to us to be unreasonable, too drastic, and perilous for the purpose intended. The 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 to prevent another is not in accord with the public safety — the very thing involved and desired. 28 Cyc. 1358, 1359, 1366, 1419B, 1422C, 1427; 13 R. C. L. § 313, p. 384.
[2] It is indeed commendable for the city authorities to adopt means and methods of preventing injuries to persons by the operation of automobiles, and, when such means adopted are reasonable and commensurate with the evil sought to be remedied, they should be upheld; and we think there are divers ways and methods of preventing the dangers incident to the street intersection in this case besides installing a contraption to injure the reasonably careful driver who innocently, through momentary forgetfulness, or on account of his attention being directed to some other proper and incidental 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 extraordinary care.
It is argued considerably by the appellant that since the National Park has bumpers in its roadways, and that there are other highways upon which bumpers have been 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 appreciated by the driver quite a distance, but not so likely on a paved street which is smooth and inviting to the traveler.
[3] 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 judgment the public authorities have in no case a right to unreasonably 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
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 streets. The question was whether the 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 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 5 inches thick and had a base of 5 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.
ETHRIDGE, J., joins in this dissent.
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