McComb City v. Hayman, 87 So. 11

McComb City v. Hayman

87 So. 11 | Miss. | 1920

Smith, C. J.,

delivered the opinion of the court.

This is an action at law in which the appellees, who are the father, mother, and brother of Jerome Wilson Hayman, deceased, recovered from the appellant damages for the death of Jerome Wilson Hayman, a child two years and seven months old, who was drowned in a gully near one of the appellant’s streets.

The streets of McComb City at the place where the death of the child occurred run north and south and east and west intersecting each other at right angles. Avenue E runs east and west, intersecting- Magnolia and Cherry streets, which run north and south one block apart. The child lived with its parents on Magnolia street in the second house south of Avenue E, and its uncle, H. E. Wilson, lived on the north side of Avenue E in the second house east of Cherry street. There is no sidewalk on the north side of Avenue E opposite the block in which the child lived, except for a short distance just before it crosses Cherry street. A gully begins some distance northeast of Avenue E and runs through private property to Avenue E striking it a short distance west of Cherry street, then east along- Avenue E to Magnolia street, and then on through property owned by private individuals. This gully was formed by water from the adjacent land for which it is a natural drain. Along Avenue E it is partly in the land acquired by the city for street purposes. *535Between this gully and that part of the street which has been set apart and improved by the appellant for travel there is a grass plot variously estimated by the witnesses as being from five or six feet to sixteen feet distant from the north edge of the traveled way of the street. The only Avitness who measured it testified that it Avas sixteen feet, and photographs thereof introduced in evidence indicate that his testimony is ¡probably correct.

A path crosses Avenue E a short distance east of the gully, estimated by some of the witnesses to be not more than two or three feet distant therefrom. The gully is several feet deep, its sides are covered with honeysuckle vines, and Avhen the child was drowned these vines Avere in bloom and the Avater in the gully was about three feet deep. The child Aims fond of flowers.

On the 25th day of March, 1919, the child with its mother’s permission went to the house of .its uncle, and on returning therefrom alone about noon it fell into this gully about thirty feet west of the path which crosses Avenue E and Avas drowned. It was last seen by a mail carrier, just a few minutes before its body was found, playing in the street about one hundred fifty feet east of the gully. The place at Avliich the child Avas droAvned Avas viewed by the court and jury during the progress of the trial. There is no evidence that the child fell into the gully from either the street or the path Avliich crosses it, but it is manifest that at the time it fell into the gully it had Avandered from the street. It is also manifest that an adult traveling along Avenue E in the daytime and using ordinary care is in no danger whatever of falling or being thrown therefrom into the gully.

A peremptory instruction requested by the appellant Avas. refused.

The measure of. a municipality’s duty in the maintenance of its streets is to use ordinary care to keep them in a reasonably safe condition for persons using. ordinary care and prudence. Vicksburg v. Hennessy, 54 Miss. 391, 28 Am. Rep 354; Meridian v. Crook, 109 Miss. 700, 69 So. *536182, L. R. A. 1916A, 482; Higginbottom v. Burnsville, 113 Miss. 219, 74 So. 133, and its liability for an injury to a child caused by a defect in its streets is the same as in the case of an adult injured by such defect while in the exercise of due care. 13 R. C. L. 368. This duty of a municipality to use ordinary care to keep its streets in a reasonably safe condition does not recpiire it in all cases to keep the entire width of its streets open and safe for travel, provided the portion thereof set apart for travel is wide enough to be safe, Gulfport & M. Coast T. Co. v. Manuel, 85 So. 308; 2 Elliott on Roads and Streets (3d Ed.), section 800, from which it necessarily follows that a city is under no duty to fill up or guard a gully that may be near the street or traveled part thereof unless it is in such close proximity thereto that a traveler passing along the street and using ordinary care is in danger of falling or being-thrown into the gully and being injured thereby. Butler v. Oxford, 69 Miss. 618, 13 So. 626. Tested by these rules, it is manifest that the appellant violated no duty it owed to the traveling public in not filling- up or guarding the gully in which this child was drowned.

But a recovery is also claimed by the appellee under the attractive nuisance doctrine on the ground' that the child may have been attracted to the gully by the flowers on the vines which covered its sides and have fallen into the Avater while attempting to gather them. There are two answers to this contention: First, in order for a thing dangerous to children to come within the attractive nuisance doctrine, it must have been artifically created, 1 Thompson on Negligence, section 1030; and, second, there is no evidence that the child was attracted from the street to the gully by the flowers, there being in fact nothing in the evidence from which its reason for leaving the street and going- to the gully or how it came to fall therein can be determined.

Reversed, and judgment here for appellant.

Reversed.