City of Meridian v. King , 194 Miss. 162 ( 1942 )

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.