Whitfield v. City of Meridian

| Miss. | Apr 15, 1889

Cooper, J.,

delivered the opinion of the court.

We do not dissent from the proposition advanced by counsel for ¡appellee, that a want of funds and an absence of power to raise money by taxation or otherwise, or to enforce contributions of labor from the residents of the town to repair its streets, would free it from responsibility for injuries sustained by reason of defective streets or sidewalks. The liability of a town for injuries caused by defective ways springs from its negligence in the performance of corporate duties, and that cannot be said to be a duty which the municipality has no power or agency to perform. But the proof introduced by the defendant falls short of the principle it was intended to support. By its charter the city of Meridian is given extensive powers of taxation over property, persons and privileges, and one-half of the. taxes derived from real and personal property is directed to be appropriated to “thelaying out, grading, improving and keeping in repair the streets and avenues of the ■city.”

The real position assumed by the city is that its revenues appropriable to its streets were expended in other and more populous parts of the city, leaving no sums to be devoted to repairs of streets in less frequented parts, by reason of which the street where the accident occurred, as well as many others, had never been graded or worked upon. The defense of want of funds is really blended with another which is more prominently set forth, and is that the city was not bound to open and put in repair the street •on which plaintiff was walking when injured, because it was not needed for the use of the public generally, and if graded would have been used by only one or two families.

It is true, we think, that a town is not called upon to open new streets in advance of public needs, and even where a street has been accepted — recognized as a public way — a different and less degree of care may suffice for one infrequently used, than for those in the heart of the town. But it does not follow because a way is but little used that the city may permit pit-falls and dangerous precipices to be made and continued in it.

It appears that many years ago one Stone, who then owned the adjacent property, threw up a part of the street forming a sidewalk, which ended at the intersection of 13th street with 24th avenue in a precipitous descent of some five or six feet. One unacquainted (as was the plaintiff) with the way, who walked along 13th street toward 24th avenue, might well suppose that a way would be found into the avenue. Walking in the day, the condition of things would be at once observed, but in the darkness of night the probabilities are that the ordinary traveler would first know of the danger by walking over the descent. This condition of things had existed for five or six years, and was either actually known to the city, or ought to have been known by the exercise of ordinary care. It was the duty of the city to know within a reasonable time of obstructions placed in the streets by others, and to cause the same to be removed.

It is not incumbent upon one who has sustained damage to prove-that the city had actual notice of the defect by which the injury was caused. Negligent ignorance is no less a breach of duty than wilful neglect. The circumstances of each case must determine whether constructive notice of the defect is to be attributed to the corporate authorities,but where, as here, the defect was manifest and of such dangerous character as to obtrude its existence to the most casual observer, and had existed through many years, but one conclusion can be reached, and that is that the authorities of the city could only have remained ignorant by neglecting all supervision of the streets in that locality.

The evidence introduced by the plaintiff was abundant to show that 13th street had been accepted by the corporate authorities and was one of the streets of the city.

The judgment is reversed and cause remanded.