Butler v. Town of Oxford , 69 Miss. 618 ( 1891 )

Cooper, J.,

delivered the opinion of the court.

Regardless of any question upou the correctness of the instructions given or refused in the court below, the judgment must be affirmed, on the ground that, in no view of the evidence, is there shown a right of recovery by the plaintiff. According to her contention, the accident in which she sustained injury resulted from the fright of hex5 horse, occasioxxed by an old furnace and some pieces of stove-pipe being deposited in a ditch by the side of the sti’eet along which she was traveling.

The evidence is conclusive that those objects had been placed in the ditch about one hour — certainly not more than two hours — before the accident, by one Sam McEwen. It is not suggested that any official of the town had notice that they had been placed thei’e, and it cannot be said that a sufficient time had elapsed from which.such notice could be presumed. The ardides were not in the wrought highway, but in the ditch beside it. Under these circumstaxxces, it would be the duty of the court to promptly set aside a verdict resting upon the negligence of the town authorities from their presumed knowledge of the condition of the highway.

The principal contention of the plaintiff in the court below seems to have beexx that the town was liable because the articles were placed in the ditch by Sam McEwen, the driver of the corporation cart, and, therefore, as the plaintiff'asserts, by the corporation itself; in other words, that McEwen was the agent of the town. We have carefully, read and re-read the record, but have failed to discover any evidence upon which the supposed agency can rest. It is said by some of the witnesses that MeEwen was the driver of the corporation cart, and that he carried the furnace and other things to the ditch in the cart. But that he was acting for the corporation on this occasion, or that he was authorized hy his general employment so to do, nowhere appears. It is not shown what his duties were at any time. "Whether he was the town scavenger or servant, whether he had any duty or authority in reference to streets, or in what respect he was supposed to act, is not shown or suggested.. All that appears is, that he was the driver of the corporation cart, and that a message was sent to him by the rector of the church to remove from the church an old furnace, and that he went for it with the corporation cart, and carried and placed it in the ditch. These facts are wholly insufficient to establish his agency for the corporation. With equal justice, the town might be held liable for the value of any property MeEwen should steal, if the asportation was with its cart.

Judgment affirmed.

Thereupon, the appellant interposed a suggestion of error, in support of Avhich JEdward Mayes filed the following brief:

A very material fact in this case is one wholly independent of the objects in the ditch. This is the improper and daugerous condition of the roadway itself. On account of the depression, a vehicle, in turning the corner, and making a deflection of only five or six feet from the narrow, beaten track in the middle of the street, would cause the inner wheels to be about ten inches higher than the others, and inevitably tend to turn the vehicle over, if there was any momentum. The view of the plaintiff is, that, even if the town is not responsible for the presence of the obstruction, still, that presence was but a contributing cause, and the shying'of the horse would still not have turned the vehicle over, if the street had been in proper condition, and, therefore, the town is liable. This view the opinion of the court does not touch. It was a view designed to be urged on the jury by the instruct!ons that were refused. It was a proper view, and should have been considered. 2 Thomp. on Neg., p. 781, note 1; Sher. & Redf., p. 459; 2 Bill., Mun. Cor., p. 1049, note 1; 6 Cush., 524; 35 N. H., 52; Morse v. Richmond, 98 Am. Dec., 600 and note.

Cooper, J.,

in response to the suggestion of error.

A verdict for the plaintiff, resting , upon the supposed defect in the wrought way, would not, in our opinion, have found sufficient support in the evidence. Clearly, the traveled way was reasonably safe, and the slope towards the ditch, outside of that portion of the street along which vehicles were ordinarily driven, was not sufficiently great to be at all 'dangerous under ordinary circumstances. The plaintiff’s horse was frightened, and veered from the traveled road, and, in so doing, upset the carriage, throwing the plaintiff therefrom. Any variation from a level in the face of the street would have contributed somewhat to the overturning of the vehicle, but to attribute the accident to the defect in the way would be in direct conflict with the facts proved by the plaintiff’s own witnesses.

Suggestioji denied.