Summary
In City of Meridian v. King, 194 Miss. 162, 11 So.2d 205, suggestion of error overruled, 11 So.2d 803, the Court said: "One of the instructions is criticized on the ground that it fails to define `negligence'. It is true that the instruction gave no definition of `negligence', nevertheless it did inform the jury that `negligence' was defined in the other instructions.
Summary of this case from Cochran v. PeelerOpinion
No. 35186.
December 21, 1942. Suggestion of Error Overruled February 15, 1943.
1. AUTOMOBILES.
Whether city's failure to give adequate warning of a dirt and concrete barricade extending approximately 24 feet into the street from the side thereof on the right-hand of oncoming traffic constituted negligence rendering city liable for injuries suffered by motorist when his automobile at night collided with the barricade, was a question for jury.
2. TRIAL.
An instruction was not objectionable for failure to define negligence where negligence was defined in other instructions given and the instruction objected to so informed the jury.
3. TRIAL.
All instructions are read together as one, and each instruction need not be complete within itself, provided all instructions taken together are complete.
ON SUGGESTION OF ERROR. (Division B. Feb. 15, 1943.) [11 So.2d 830. No. 35186.]1. MUNICIPAL CORPORATIONS.
A municipality must exercise ordinary care to keep its streets reasonably safe for use by persons exercising reasonable care and caution.
2. MUNICIPAL CORPORATIONS.
Where city has failed to exercise required degree of care in construction or maintenance of its streets and its negligence contributes to an injury, the injured person is not barred from recovery although he also was guilty of negligence, unless his negligence was such as to constitute the sole proximate cause.
3. MUNICIPAL CORPORATIONS.
The conduct of person injured because of alleged failure of the city to exercise required degree of care in construction or maintenance of street is not a proper subject of inquiry unless liability of city has previously been adjudged.
4. MUNICIPAL CORPORATIONS.
A municipality has right in construction and maintenance of its streets to act in light of expectation that users thereof will look to physical aspects and natural condition of things surrounding them.
5. MUNICIPAL CORPORATIONS.
The rule that city has duty of exercising "reasonable care" to keep its streets reasonably safe for use by persons exercising reasonable care does not mean that the city is liable only to those using reasonable care but city's negligence is to be determined by its conduct without reference to that of injured person and city's liability becomes fixed when such negligence becomes the proximate cause of injury.
6. MUNICIPAL CORPORATIONS. Negligence.
Where city is negligent in construction or maintenance of street and its negligence is a proximate cause of injury, the city is liable to the injured person regardless of whether he was using reasonable care, but his negligence becomes a relevant factor in determining extent of city's liability (Code 1930, sec. 511).
APPEAL from the circuit court of Lauderdale county, HON. ARTHUR G. BUSBY, Judge.
Robert R. Wallace and Jacobson, Snow Covington, all of Meridian, for appellant.
This is not a case where a temporary obstruction has been placed in a street at a point generally used by the public. It is not a case where a wall has been built out into a street at a point generally used and where the street is used up to the wall on both sides thereof. There was no cut off portion of the street in use east of the wall, and behind it. The full street as laid out east of Seventeenth Avenue was in unobstructed use on the night of and at the time of the accident complained of. The street simply was not as wide on the east side of Seventeenth Avenue as it was on the west side of Seventeenth Avenue. 23 feet 11 inches on the south side of Front Street west of Seventeenth Avenue "played out" when Front Street reached the west side of Seventeenth Avenue. There were 12 feet 6 inches on the east side of Seventeenth Avenue, between the guard wall and the east line of the avenue. At the east line of Seventeenth Avenue, and opposite the guard wall, there was an abrupt rise of 1 foot in the surface of the ground above the surface of the avenue. This 12 foot 6 inch space had grass and weeds growing thereon demonstrating that this space was not used for vehicular traffic or for sidewalk purposes. It was not used at all.
It is the well established rule in Mississippi that a municipality is not an insurer of the safety of its streets or walks, and that it need only exercise reasonable care to keep them in a reasonably safe condition for travel.
Higginbottom v. Village of Burnsville, 113 Miss. 219, 74 So. 133; City of Meridian v. Crook, 109 Miss. 700, 69 So. 182; City of Natchez v. Cranfield, 155 Miss. 540, 124 So. 656; Gulfport Miss. Coast Traction Co. v. Manuel, 123 Miss. 266, 85 So. 308; Rahm v. City of Vicksburg, 255 F. 541, 166 C.C.A. 609; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; Dow v. Town of D'Lo, 169 Miss. 240, 152 So. 474; City of Hattiesburg v. Reynolds, 124 Miss. 352, 86 So. 853; Butler v. Town of Oxford, 69 Miss. 618, 13 So. 626; Town of Union v. Heflin, 104 Miss. 669, 61 So. 652; City of Hazelhurst v. Matthews, 180 Miss. 42, 176 So. 384; Warren v. City of Tupelo, 187 Miss. 816, 194 So. 293; Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 379; Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42; Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827.
The rule is that a municipality is required to exercise only ordinary care to see that its streets and sidewalks are kept in reasonably safe condition for use by persons exercising reasonable care and caution for their own safety.
City of Meridian v. Crook, supra; McComb City v. Hayman, 124 Miss. 525, 87 So. 11; Higginbottom v. Burnsville, supra; City of Natchez v. Cranfield, supra; Thomas v. City of Lexington, 168 Miss. 107, 150 So. 816; Dow v. Town of D'Lo, supra; City of Greenville v. Laury, supra; Standard Oil Co. v. Decell, supra; City of Hazelhurst v. Matthews, supra; Warren v. City of Tupelo, supra; Brewer v. Town of Lucedale, supra; Birdsong v. City of Clarksdale, supra.
There is no presumption of negligence simply because an accident has happened. Negligence must be proven.
Town of Union v. Heflin, supra.
Nor does the doctrine of res ipsa loquitur apply.
City of Natchez v. Cranfield, supra.
Appellee claimed in his declaration that there was no light at the intersection of Front Street with Seventeenth Avenue, but he did not sustain this allegation by the proof. He stated there was a light provided at the northwest corner of this intersection but would not affirm nor deny that this light was burning on the occasion in question. Since the light was there it will be presumed that it was burning, and the burden of proof was on appellee to show that it was not burning.
But, under the facts of this case, it is immaterial, in our judgment, whether the street light was burning or not. This accident occurred between 11:30 and 12:00 o'clock midnight. By Article 15, Chapter 122B, Section 1502, et seq., Mississippi Code of 1930 Annotated, 1938 Supplement, it is provided that automobiles traveling on public highways and streets after dark shall be equipped with headlights. The purpose of requiring headlights on automobiles is to insure that the driver can see what is ahead of him. Appellee's car was equipped with good headlights, and they were burning on bright just before and at the time the accident complained of occurred. Also, the car which appellee met and passed was equipped with bright headlights. There was plenty of light. With the light with which appellee's car was equipped, he could and should have seen the guard wall before the other car was noted.
According to appellee's testimony he was only about 125 feet from the guard wall when he noted the approach of the other car, which was then about 90 to 100 feet further east than the guard wall.
The law of Mississippi recognizes that the driver of a motor vehicle must keep a close watch-out ahead. In many cases it has been held that it is the duty of the driver of a motor vehicle to keep a vigilant lookout ahead of his automobile, and that failure to keep a vigilant lookout ahead while driving an automobile is negligence.
Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487; Graves v. Johnson, 179 Miss. 465, 176 So. 256; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Porter v. Nesmith, 124 Miss. 517, 87 So. 5; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Graves v. Hamilton (Miss.), 177 So. 360; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Reid v. McDevitt, 163 Miss. 226, 140 So. 722; Terry v. Smylie, 161 Miss. 31, 133 So. 662.
The law requires the driver of an automobile to keep same under reasonable control, and by control of vehicles is meant that the driver shall have the ability to stop same readily and easily.
Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Daniel v. Livingstone, 168 Miss. 311, 150 So. 662.
See also Southern R. Co. v. Buse, 187 Miss. 752, 193 So. 918.
It is the settled law of Mississippi that one blinded by the lights of an on-coming automobile, or by any other cause, must immediately reduce the speed of his automobile to a speed which will permit him to stop his automobile within the distance within which he can reasonably see ahead of his car. If totally blinded he must immediately bring his car to a stop.
Daniel v. Livingstone, supra; Terry v. Smylie, supra; McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877; Rhodes v. Fullilove, supra; Kullman Co. v. Samuels, 148 Miss. 871, 114 So. 807; Frazier v. Hull, 157 Miss. 303, 127 So. 775; Myers v. Sanders, 189 Miss. 198, 194 So. 300; Cowart v. Lewis, 151 Miss. 221, 117 So. 531; Simon v. Dixie Greyhound Lines, 179 Miss. 568, 176 So. 160.
Appellee either was blinded, did not look where he was driving, which is the same as being blinded, or drove so recklessly that his acts and the manner in which he drove his automobile were the sole proximate cause of his driving his automobile into the guard wall.
Lee v. Reynolds, supra; Gulfport Mississippi Coast Traction Co. v. Manuel, 123 Miss. 266, 85 So. 308; Walker v. Vicksburg, 71 Miss. 899, 15 So. 132; Butler v. Oxford, 69 Miss. 618, 13 So. 626; Nesbitt v. Greenville, 69 Miss. 22, 10 So. 452.
See also McComb City v. Hayman, supra; Maxedon v. City of Corinth, 155 Miss. 588, 124 So. 795; Warren v. Town of Booneville, 151 Miss. 457, 118 So. 290; Bradley et al. v. City of Jackson, 153 Miss. 136, 119 So. 811; City of Vicksburg v. Hennessy, 54 Miss. 391, 28 Am. Rep. 354; Butler v. Oxford, supra; Town of Isola et al. v. Humphreys County (Miss.), 99 So. 147; Blocker v. State, 72 Miss. 720, 18 So. 388.
The instruction complained of authorized the jury to return a verdict against appellant, provided appellant was guilty of negligence as defined in the instructions. Appellant had no instruction defining negligence. This court has condemned instructions authorizing recovery by a plaintiff, if the jury believes the defendant guilty of negligence, in numerous cases.
McDonough Motor Express v. Spiers, 180 Miss. 78, 176 So. 723; Southern R. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Baldwin v. McKay, 41 Miss. 358; Young v. Power, 41 Miss. 197; Yazoo M.V. Ry. Co. v. Cornelius, 131 Miss. 37, 95 So. 90.
Reily Parker and Williamson Riddell, all of Meridian, for appellee.
The testimony in this case shows that one of the active public streets within the City of Meridian is known as Front Street or Second Street, which street runs east and west and is crossed by certain avenues which run north and south. In passing along Front Street in going from the central portion of the city and while traveling in an easternly direction one approaches Seventeenth Avenue, and at the point where Front Street intersects and crosses Seventeenth Avenue there is a large ditch or ravine which is spanned by a concrete bridge across the street, and the west end of this bridge is the eastern boundary of Seventeenth Avenue. That portion of Front Street which is west of Seventeenth Avenue is paved and 54 feet 3 inches wide, and that portion of Front Street which is east of Seventeenth Avenue is 30 feet 4 inches wide, making a difference of 23 feet 11 inches in the width of Front Street at this point, and this difference is evidenced by a concrete bridge along the northern side of Front Street which is 30 feet 4 inches wide, with concrete walls on either side of the bridge, and this concrete wall on the south side of the bridge and at the west end thereof turns to the south and extends to the southern edge of Front Street. This concrete wall is 3 feet 4 inches high, except that dirt had been permitted to accumulate against this wall to a depth or height of 1 foot 7 inches, leaving the exposed portion of the wall 1 foot 9 inches in height. This accumulated dirt extended from the wall into the intersection of Front Street and Seventeenth Avenue a distance of 12 feet 5 inches from the wall, and grass and weeds had been permitted to grow on this dirt embankment until everything was about the same color as the street. This concrete wall and dirt embankment and grass and weeds completely closed the southern side of Front Street for a width of 23 feet 11 inches, so that a person traveling along Front Street and going in an easternly direction when Seventeenth Avenue was reached would be required to turn to the left a distance of 23 feet 11 inches from the southern edge of Front Street in order to miss this wall and pass onto the bridge. The plaintiff while so traveling failed to so turn his automobile and ran into and over this wall and into the ditch or ravine beyond and received the injuries sued for. While and when the plaintiff was approaching this wall he was meeting another automobile being driven along Front Street and going in a westernly direction and the two automobiles met and passed at this street intersection, and the plaintiff failed to see this wall until it was too late to avoid running into it. The lights on the approaching automobile and the lights on the plaintiff's car were burning and there was a street light on the opposite or north side of this street, but it is not shown whether this light was burning or not, but the lights there at this time were sufficient for the plaintiff to observe the approaching automobile and the street boundaries with sufficient clearness to see that the automobile could pass in safety and that plaintiff's automobile continued along the southern edge of the street and within 3 1/2 feet of the curb, but the plaintiff was unable to see the wall in front as he approached such wall, and therefore ran into the wall.
There is no dispute as to the facts in this case, and we see no real disagreement as to the law, the difference being the application of the agreed law to the facts. We do not contend that a municipality is an insurer of the safety of its streets, and therefore we make no reply to the cases cited by the appellant to this effect. We agree with counsel for appellant that a municipality is required by law to exercise ordinary care to see that its streets and sidewalks are kept in a reasonably safe condition for use by persons exercising reasonable care and caution for their own safety, and we, therefore, make no reply to the cases cited by the appellant to this effect. We do state, however, that contributory negligence on the part of a person using a street or sidewalk is not a complete defense on the part of a municipality. If the street in question is in fact not reasonably safe for use by a person using reasonable care for his own safety, and a person while not using reasonable care for his own safety is injured, such lack of care on the part of the injured party would only be contributory negligence, and the municipality would be liable. And for that reason we are primarily concerned, at first, with the proposition of the reasonable safeness of this place at the time of this injury. This rule has been announced by our courts many times.
Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827; Jordan v. City of Lexington, 133 Miss. 440, 97 So. 758.
The city argues that when an injured user of streets is negligent in the use thereof, it is not a question of contributory or comparative negligence, but simply that the municipality owes no duty to a negligent user; and it refers to the formula used by this court in Greenville v. Laury, 172 Miss. 118, 122, 159 So. 121, 123, that the municipality owes the duty "to exercise ordinary care to keep its streets reasonably safe for use of persons exercising reasonable care and caution." The city says that this means that unless the user exercises reasonable care and caution the city owes him no duty, however remiss the city may have been. It says that this formula sets over into a class to whom the city owes no duty, all those who are chargeable with any negligence in the use of the streets, and that since the city owes to this class no duty, the comparative negligence statute is not involved.
The city is correct that the quoted formula has nothing to do with contributory or comparative negligence. It was the established formula used in this state long before the comparative negligence statute was enacted, and is the formula which is in use in many states where contributory negligence is still a complete defense. The formula has to do with the measure of the care which the city must exercise, and has no such purpose, so far as it in itself is concerned, as to absolve the city, however negligent it may have been, if only some negligence may be shown against the injured person, and solely because of the latter. The expression is a brief definition of the duty of the city but does not operate as a deprivation of the right of the citizen. It sets up a standard of conduct for the city under which it may be reasonably absolved, but not a criterion by which the citizen shall be unreasonably barred.
See Gould v. Town of Newton, 157 Miss. 111, 126 So. 826.
We do not intend to imply that the plaintiff was guilty of negligence in the manner in which he approached this wall while driving his automobile, but we do desire to have the line of liability drawn between contributory negligence and the safety required of a street or sidewalk which must be maintained in that condition which will be reasonably safe for a person while using reasonable care for his own safety. In this case we contend that the place in question was not reasonably safe for use by a person while using reasonable care for his own safety, and that the plaintiff did use reasonable care for his own safety, but that in fixing the liability of the defendant we are not required to first show that the plaintiff was in fact free from negligence.
As to what care the municipality should expect a traveler to exercise and how safe the street should be maintained in order to be within the law, see Graves v. Johnson, 179 Miss. 465, 176 So. 256.
It is clear that it was the duty of the defendant in this case to use reasonable care to see that no obstruction would be placed in Front Street which would likely cause harm to a traveler thereon, when such traveler was then assuming that there were no obstructions in the street which should not be there and was not constantly keeping his eyes fixed on the path or looking far ahead for defects which should not exist. And it is this rule that must be applied to the wall maintained by the defendant in this case; a wall which completely obstructed nearly half of the width of the street, and about which was piled dirt with grass and weeds growing thereon, and without any markings or warning of this sudden change in the condition of this street.
We are of the opinion that ample authority is found in the reported cases from this state to show the liability of the defendant on these facts, but we will first call the court's attention to a few cases reported from other states.
Harvell v. City of Wilmington, 200 S.E. 367; Bennet v. Kings County, 12 P.2d 47; City of Indianapolis v. Willis, 194 N.E. 343.
See also Dent v. Town of Mendenhall, 139 Miss. 271, 104 So. 82.
The appellant contends that it was error to grant the instruction requested by the plaintiff, which reads: "The court charges the jury for the plaintiff that if you find from a preponderance of the testimony that the defendant was guilty of negligence as defined in the instructions in this case, and also that the plaintiff was guilty of negligence, and the negligence of both the defendant and the plaintiff proximately contributed in causing the plaintiff's injury, then it will be your duty to return a verdict in favor of the plaintiff."
This instruction was before this court in the case of Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356, and held not to be erroneous. It is not necessary to embody all the legal elements in any one instruction, and this instruction was intended to inform the jury of their duty, insofar as liability was concerned, where it was found that both the defendant and the plaintiff were guilty of negligence which proximately contributed in causing the injury, and in so doing the correct rule of law is stated. The fact that the instruction limited the consideration of the jury to such acts as would constitute negligence as defined in the other instructions in the case would not render the instruction erroneous but would require the consideration of such other instructions to see if negligence was there properly described. The other instructions in the case did properly direct the jury as to negligence and therefore the complaint made here is not well founded.
Argued orally by E.L. Snow, for appellant, and by Nate S. Williamson, for appellee.
Appellee King brought this action in the circuit court of Lauderdale county against appellant City of Meridian to recover damages for an injury he received while driving his automobile in the nighttime at the intersection of Seventeenth Avenue and Front Street, two much traveled thoroughfares of the city. He recovered a judgment in the sum of $2,500, from which the city prosecutes this appeal.
The principal ground relied on for reversal is that the court erred in refusing the city's request for a directed verdict. The giving of two of the instructions granted the plaintiff is also assigned and argued as error.
Between 11 and 12 o'clock at night the plaintiff was driving his automobile east on Front Street and at its intersection with Seventeenth Avenue he ran into a street barricade and was injured. Recovery was sought on two grounds, (1) that the intersection was so constructed and maintained by the city as to be dangerous to the traveling public, and (2) whether properly constructed or not it was a dangerous intersection and the city was due to post one or more adequate warnings of the danger by a red light or otherwise. There was no evidence tending to show that the construction of the crossing itself was dangerous to the traveling public. The issue of fact made by the evidence was whether or not it should have been and was properly guarded by a red light or otherwise to prevent collision with the barricade on the east side of Seventeenth Avenue, hereinafter described. Seventeenth Avenue runs north and south, and Front Street east and west. West of the intersection Front Street is 54 feet and 3 inches wide, while east of the intersection it is 30 feet and 4 inches wide. This difference was caused by a right angle cutdown of 23 feet and 11 inches in Front Street on the east side of the intersection and on the south side of Front Street. Along this 23 feet and 11 inches there was erected a concrete barricade wall 3 feet and 4 inches high, and against this wall on the west was a dirt embankment about 1 1/2 feet high, leaving the concrete wall exposed to view about 1 foot and 10 inches above the dirt wall. The result was that the travel going east on Front Street would be facing directly the east side of the wall.
Front Street at the crossing and for some distance east and west is straight.
The only witness to the accident was the plaintiff himself. He testified that there was no red light or other warning of any kind of the approach to the intersection; that when he got within about 75 or 100 feet of the intersection there appeared an automobile meeting him about the same distance east of the intersection; that its lights shown so brightly in his face that he was unable to see the barricade or anything else ahead of him; that he did not know of the existence of the barricade; that he reduced his speed to something like 15 or 20 miles an hour, but nevertheless he ran into and over the barricade and down into a ditch on the east side, causing his injury. That the next day he saw a light some distance to the north side of the intersection, but if it was burning on the night of his injury he did not and could not see it.
We are of the opinion that it was a question for the jury whether or not in the exercise of reasonable care for the safety of the traveling public the city was due to give adequate warning to those traveling east on Front Street that they were approaching the barricade.
The evidence tended to show that the plaintiff himself was negligent in approaching the crossing, that in the exercise of reasonable care for his own safety he should have stopped his car when he was blinded by the lights of the approaching car. At the request of the defendant the court gave a comparative negligence instruction.
One of the instructions is criticized on the ground that it fails to define "negligence." It is true that the instruction gave no definition of "negligence," nevertheless it did inform the jury that "negligence" was defined in the other instructions. We are of opinion that that is true. All instructions are read together as one. It is not necessary that each one shall be complete within itself, but that all together shall be complete. That is true of the instructions in this case. The criticism of the other instruction given for the plaintiff is so devoid of merit as not to call for a ruling by the court.
Affirmed.
ON SUGGESTION OF ERROR.
A judgment for plaintiff was affirmed at a former day of this term. The defendant complains upon suggestion of error that the law has been settled in this state by numerous decisions which it is contended are, in effect, overruled by our opinion. These cases include City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L.R.A. 1916A, 482; McComb City v. Hayman, 124 Miss. 525, 87 So. 11; Higginbottom v. Burnsville, 113 Miss. 219, 74 So. 133; City of Natchez v. Cranfield, 155 Miss. 540, 124 So. 656; Thomas v. City of Lexington, 168 Miss. 107, 150 So. 816; Dow v. Town of D'Lo, 169 Miss. 240, 152 So. 474; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 379; City of Hazlehurst v. Matthews, 180 Miss. 42, 176 So. 384; Warren v. City of Tupelo, 187 Miss. 816, 194 So. 293; Brewer v. Town of Lucedale, 189 Miss. 374, 379, 198 So. 42; Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827.
An analysis of the foregoing cases should disclose that they expound a principle adherence to which required a conclusion contrary to defendant's contention. The repetition of the statement of reasonable care applicable in similar cases seems not to have been sufficient to guarantee its full comprehension. The standard of care required of a municipality in its construction or maintenance of its streets was carefully restated in City of Greenville v. Laury, 172 Miss. 118, 159 So. 121, as "the duty to exercise ordinary care to keep its streets reasonably safe for use by persons exercising reasonable care and caution."
The contention here made, that since this court found that plaintiff was not himself exercising reasonable care, the city owed him no duty, was made in most of the foregoing cases, and was especially urged in Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827, 830, and a clarification made of the point, the opinion stating: "The measure of care imposed on the city is defined in terms of an anticipated use and is modified accordingly; but if the city has failed to fulfill this measure of care, and its negligence concurs with or contributes to an injury, the injured person is not barred although he also was guilty of negligence — unless, of course, his negligence was such as to constitute the sole proximate cause." In the instant case the jury were authorized to find, and did find, that plaintiff's negligence was not the sole cause of his injury.
It seems that misapprehension of the rule arises from a tendency to confuse the word "persons" in the definition of the city's initial duty with the "person" who at the moment happens to be a plaintiff. The conduct of such plaintiff is not a proper subject of inquiry unless and until liability of the city has previously been adjudged by an application of the foregoing rule. This rule is an abstract statement of substantive law. The standard of duty is not merely care, it is reasonable care; and more, it is reasonable care to maintain its streets in a reasonably safe condition. But this is not yet sufficiently definite because we must have a standard of reasonable safety. Such definition must be made, and may be found in the Birdsong case, supra, where it is said, "The municipality has the right, therefore, in the construction and maintenance of its streets to act in the light of expectation that the users thereof will look to the physical aspects and the natural condition of things around them." See, also, Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 199 So. 294, 1 So.2d 242.
The argument here made is that which was answered in the foregoing cases. It is this: since plaintiff was not using reasonable care the city owed him no duty under the rule set forth. This contention misconceives the rule and its acceptance would reinstate the complete bar of contributory negligence. Cf. dissenting opinion City of Greenville v. Laury, supra. The rule does not mean that the municipality is liable only to those using reasonable care. Its negligence is to be determined by its own conduct, without reference to that of plaintiff, and its liability becomes fixed when such negligence becomes the proximate cause of injury. A plaintiff's conduct is not a factor in adjudging the initial negligence of the city. He may be using more or less care than the standard required by the rule. If the city is negligent, and injury ensues, it is liable to the injured party, regardless of whether the latter was using reasonable care or not. As to the extent of such liability, the negligence of plaintiff becomes a relevant factor under Code 1930, sec. 511. The city's negligence is not appraised with reference to the particular plaintiff nor the particular accident; it is determined initially with reference solely to the standard of care as defined in the principle. If the city is negligent by its conduct the plaintiff's negligence becomes contributory; if the city is not negligent by the abstract test the injury is due solely to negligence of the plaintiff.
When the statement of the principle is disarranged confusion is invited. Thus it wholly destroys the import of the rule to say, as is here contended, that a municipality owes a duty to those using reasonable care and caution to exercise ordinary care to keep its streets reasonably safe. Another distortion too frequently found is that the city must exercise such care provided the plaintiff uses reasonable caution. The phrase "persons exercising reasonable care and caution" modifies, not "duty," but "safe." As stated in the Birdsong case, supra: "The expression is a brief definition of the duty of the city but does not operate as a deprivation of the right of the citizen. It sets up a standard of conduct for the city under which it may be reasonably absolved, but not a criterion by which the citizen shall be unreasonably barred."
Suggestion of error overruled.