Opinion
April 25, 1949.
1. Municipalities — streets — duty as to safety.
In the rule that it is the duty of a municipality to exercise ordinary care to keep its streets reasonably safe for use by persons using reasonable care and caution, the latter qualification does not imply that contributory negligence of an injured person would bar recovery, but that it is to be considered in determining the extent of the duty.
2. Municipalities — streets — untraveled portion.
A municipality is not under duty to maintain the entire width of a street in condition for public travel, nor to keep down high weeds and bushes in the untraveled portion nor to maintain a warning signal at a street intersection on account of the obstruction to view caused by such weeds and bushes, and an injured party will have no cause of action against the municipality for failure in the stated respects.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Prentiss County; W.A. BLAIR, Special J.
Windham Cunningham, for appellant.
The sole question presented by this appeal is the liability, vel non, of a municipality for negligently permitting its streets to grow up in weeds and bushes so as to obscure the view of persons operating automobiles upon its streets. That the municipality is liable, we submit the following established principles of law:
1. It is the duty of a municipality to use reasonable care to keep its streets in a reasonably safe condition for public travel, and a failure to so do is negligence.
2. Permitting weeds and bushes to grow up in the streets to such height as to obstruct the view of the traveling public is negligence.
The first proposition is so well established, it seems unnecessary to cite authorities in its support. This court, beginning with Mayor, etc., of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774, and in every case since, involving this question, has upheld this established principle. We do not desire to burden the court with every case supporting the rule, but respectfully cite the following: McComb City v. Hayman, 124 Miss. 525, 87 So. 11; Dent v. Mendenhall, 139 Miss. 271, 104 So. 82; City of Vicksburg v. Scott, 168 Miss. 572, 151 So. 914; Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42; Birdsong v. Clarksdale, 191 Miss. 532, 3 So.2d 827.
Point 2. We have been unable to find a case deciding the specific issue involved here. But we find analogous cases involving the liability of railroads for permitting hedges, trees, weeds or other things to grown upon its right of way at crossings to such height as to obstruct the view of the traveling public. In 44 Am. Jur. 745, Sec. 505, we find a discussion of this question, and it is there stated ". . . and to permit or suffer hedges, trees, weeds, or anything else to grow upon its right of way to such a height as materially to obstruct the view is negligence." See also Burzio, et al v. Joplin Pittsburg Railway Company, 171 P. 351, L.R.A. 1918C 997; Chicago, etc., R. Co. v. Williams, 56 Kan. 333, 43 P. 246 quoted in Corley v. Atchinson etc. Ry. Co., 90 Kan. 70, 133 P. 555, Ann. Cas., 1915B, 764.
We respectfully submit that if it is negligence for a railroad company to permit weeds and bushes to grow upon its right of way so as to obstruct the view of the traveling public, it certainly follows that it is negligence on the part of a municipality to permit such growth to reach out into its streets for several feet so as to wholly obstruct the view of the traveling public. Plaintiff's declaration alleged such condition existed on the date of the accident and had existed for a long time prior to the accident. Whether the municipality was negligent and its negligence contributed to plaintiff's injuries, are questions that ought to be submitted to a jury, and for this purpose, this cause ought to be reversed and remanded.
Donald Franks, for appellee.
Appellee contends that the duty of a municipality to maintain its streets in a reasonably safe condition extends only to those persons using such streets while exercising reasonable care and caution. Such duty does not extend to those using the streets failing to exercise reasonable care and caution for their own safety.
Appellant makes no charge that the traveled portion of the streets where the accident occurred was inadequate in any manner. There is no charge that such traveled way was not sufficiently wide for safe travel. The law does not impose the duty upon municipal corporations to maintain 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. The user of vehicles is not entitled to the entire street from property line to property line; but, so long as the traveled way is adequate for the use of vehicles, the duty of the municipality to the driver of vehicles is satisfied. Gulfport Mississippi Coast Traction Co., et al v. Manuel, et al, 123 Miss. 266, 85 So. 308; McComb City v. Hayman, 124 Miss. 525, 87 So. 11.
The only charge of negligence made by appellant is that weeds and bushes had been allowed to grow up and obscure the view. This court will take judicial notice of the fact that many intersections in municipalities have blind corners due to buildings and other obstructions which are a necessary part of municipal development. Most alleys in towns and cities are bounded by buildings which obscure all view of drivers except the view straight ahead. Certainly it can not be said that to allow such conditions to exist is negligence on the part of the municipality. Drivers of motor vehicles are familiar with such conditions and when driving upon the streets and alleys of municipalities such drivers must exercise that degree of care and caution demanded by the conditions confronting them. Reasonable care and caution demands that the driver of a motor vehicle maintain a sharp lookout and to have his vehicle under absolute control.
The weeds and bushes complained of by appellant in the instant case were plainly visible to all users of such intersection. No hidden danger or obscure defect is here involved. The condition complained of by appellant was plainly apparent to all users of this particular intersection and the exercise of reasonable care and caution by the driver of a motor vehicle at such intersection would, we believe, absolutely eradicate the danger complained of by appellant.
It is common knowledge that no obstruction at the corner of an intersection can obscure all view. The driver of the vehicle in the case at bar saw the obstruction complained of or by the exercise of the slightest degree of caution could have seen the same. The driver recognized or should have recognized the extent of his vision upon entering such intersection. Such knowledge of this condition demanded that this driver use reasonable care and caution in proceeding into the intersection and appellee contends that as a matter of law this driver failed to exercise reasonable care and caution on this occasion. If he had done so the accident would not have occurred.
If the driver of the automobile in the case at bar failed to use reasonable care in entering said intersection appellee owed no duty to him or the occupants of his car or because under the law the duty imposed upon a municipality to maintain its streets in a reasonably safe condition extends only to those exercising reasonable care for their own safety while using such streets.
In the case of City of Hazelhurst v. Matthews, 180 Miss. 42, 176 So. 384, this court used the following language: "There is no trouble about the governing principles of law. The difficulty comes in their application. Whether a directed verdict should be granted is always a mixed question of law and fact. It is true that the court is not called upon to decide the issue of fact one way or the other, but is called upon to decide whether there is an issue of fact under the law to go to the jury. This duty of a municipality to keep its streets and sidwalks reasonably safe for the traveling public is not an absolute one. Reasonable care to keep them reasonably safe for those using them with due care is the criterion."
Under the law, therefore, there was imposed upon the Town of Booneville the duty to exercise ordinary care to maintain its streets reasonably safe for use by persons exercising reasonable care and caution. Appellee contends that the driver of the car in the present case did not exercise reasonable care and caution and by virtue of his failure to do so he excluded himself and the other occupants of his vehicle including appellant from the protection of the aforesaid duty and consequently there is no basis for liability against appellee in the case at bar.
As a further argument in support of our contention that appellant did not come within the protection of the rule of law under discussion we call the court's attention to the numerous cases imposing liability upon the driver of an automobile entering an intersection and failing to maintain a proper lookout or to have his machine under control. In driving an automobile across intersections of streets or public highways, the driver must keep a reasonable lookout for persons in the line to be traversed. The driver of an automobile has no right to drive blindly upon the assumption that an intersection will not be obstructed by another vehicle or person. The driver must keep his vehicle under control and be on the alert for pedestrians and other vehicles on the street. He must drive at a rate of speed which will enable him to avoid injury to those who should come under his observation. He must at all times drive his car at a reasonable rate of speed in view of the conditions with which he is confronted. He has no right to assume that all other persons will observe the traffic laws. Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Snyder v. Campbell, 145 Miss. 287, 110 So. 678, 49 A.L.R. 1402; Aycock v. Burnett, 157 Miss. 510, 128 So. 100; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Terry v. Smylie, 161 Miss. 31, 133 So. 662; Daniel v. Livingstone, 168 Miss. 311, 150 So. 662; Mississippi Power Light Co. v. Lembo, 32 So.2d 573.
On page three of the brief for appellant is found this statement: "Permitting weeds and bushes to grow up in the streets to such height as to obstruct the view of the traveling public is negligence." Appellant admits their failure to sustain this view in the reported cases, but seeks to sustain this view by citing several cases involving the liability of railroad under similar circumstances.
The rules of liability governing the conduct of municipal corporations and railroad corporations are quite different. Railroads are owned and operated by private corporations. A municipality is a public corporation organized and maintained solely for the public welfare and benefit. Such a corporation is an arm of the state and is liable in tort in a very limited manner and the trend of modern jurisprudence relative to tortuous conduct of municipal corporations is to limit and not extend liability.
The appellant, a minor suing by her father as next friend, brought suit against appellee, an incorporated municipality, for the recovery of damages on account of personal injuries sustained by her in a collision of two automobiles at an interscetion of two public streets in said town.
The declaration and a bill of particulars thereon charged that the appellant was riding in an automobile driven by her father and traveling east on Washington Street, and that this automobile collided in the intersection with another automobile driven by Willie Pate and traveling south upon First Street, as a result of which the automobile of plaintiff's father was hurled several feet into the air and she sustained serious injuries. It is charged that the municipality had negligently permitted high grass, weeds and bushes to grow up in both streets and that the same extended approximately fifteen feet out into Washington Street on the north side thereof and more than fifteen feet into First Street on the west side thereof, leaving less than twenty feet for a travel way, and that by reason thereof the view of persons entering said intersection was obscured. The municipality was further charged with negligence in failing to install reasonable warning signals at the intersection. A demurrer to the declaration was sustained and, the appellant having declined to plead further, her suit was dismissed, from which action of the lower court she appeals.
Appellant contends that a sufficient case was stated for submission to a jury on the question of appellee's negligence. Both parties state that they have not been able to find any case in point, and we have likewise been unable to do so, but we shall consider the case under the general principles governing the duty of municipalities with respect to their public streets. It has been repeatedly declared by this court that it is the duty of a municipality in this state to exercise ordinary care to keep its streets reasonably safe for use by persons exercising reasonable care and caution. City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; City of Hazelhurst v. Matthews, 180 Miss. 42, 176 So. 384, and the authorities therein cited. (Hn 1) When it is said that this duty is owing to keep the streets in a reasonably safe condition for use by persons exercising reasonable care and caution for their own safety, it is not meant to imply that contributory negligence of an injured person would bar a recovery, for such an implication would be in violation of Section 1454, Mississippi Code of 1942, providing that contributory negligence of an injured person shall not bar a recovery but shall only require a diminution in the amount of damages recoverable. The qualification, however, is to be considered in determining the extent of the duty of municipalities with respect to their streets.
In the case presented by the record here it appears that the town maintained for public travel a portion of its street approximately twenty feet in width. There is no complaint of any defect in that portion of the street which was maintained for public travel. The only complaint is with reference to that strip of about fifteen feet in width which was not maintained for public travel, and that complaint is not that there was any hole, obstruction or other defect which made hazardous that portion which was open for public travel except the fact that nature had filled the untraveled portion with high grass, weeds and bushes, and that the town had negligently failed to remove or cut down the same and had negligently failed to provide a warning signal at the intersection. There was nothing dangerous in the permissive growth of the grass, weeds and bushes; these growths were not themselves sufficient to have caused an injury to a person using the traveled portion of the street in the exercise of reasonable care for his own safety and protection.
(Hn 2) In the case of Gulfport Mississippi Coast Traction Co. and City of Biloxi v. Manuel, 123 Miss. 266, 85 So. 308, it was held that a municipality is not under duty to maintain the entire width of a street in condition for public travel, and that a user of vehicles is not entitled to the use of the entire street from property line to property line. In that case the street was about thirty seven feet wide, and the portion set apart and maintained for public travel was about eighteen feet wide. In the case of McComb City v. Hayman, 124 Miss. 525, 87 So. 11, substantially the same rule was again announced.
We cannot close our eyes to the fact that throughout this state and, in fact, throughout all the states of the Union, in the improvement and beautification of streets it is common practice for municipalities to set apart in wide streets neutral grounds extending from corner to corner down the center of such streets, and to improve and maintain a strip of such streets for public travel on either side of such neutral grounds, and that these neutral grounds are planted with shrubbery, flowers, and even trees which have a tendency to obstruct the vision of travelers at intersections. There is no difference in principle whether vision be obscured by high grass, weeds and bushes, or by flowers, shrubbery and trees, and we decline to be the first court to hold that a municipality is liable in damages resulting from the collision of two automobiles when the vision of the drivers is obscured at such intersections.
Appellant cites and relies upon that line of cases holding railroads liable for injuries at public crossings when rights of way are permitted to grow up with high grass and bushes so as to obstruct the vision of highway travelers up and down the railroad tracks and so as to obstruct the vision of engineers and prevent from seeing vehicles approaching a public crossing. In those cases, where the courts have held a railroad liable, the fact of the growth of high grass and bushes along a right of way has been only one element entering into the finding of negligence, such obstructions usually requiring added care on the part of an engineer as to the speed of the train or as to warning signals to be given when a train is approaching the crossing, and in each of those cases the defendant permitting such obstruction of vision was an active participant in the proximate cause of the injury inflicted, that is to say, in each of such cases, the defendant's own train caused the injury. Those cases are clearly distinguishable from the facts presented in the case at bar.
We are of the opinion that appellant has not stated a case sufficient to justify submission thereof to a jury, and that, consequently, the judgment of the lower court should be affirmed.
Affirmed.