Byrnes v. City of Jackson

^* Headnotes 1. Municipal Corporations, 28 Cyc., p. 1270; 2. Negligence, 29 Cyc., p. 561; 3. Negligence, 29 Cyc., p. 640. The appellant sued the city of Jackson for an injury inflicted by a bear kept by the city in its zoo in Livingston Park. She alleged that, by virtue of the general invitation extended to the public to enter into and enjoy the benefits and pleasures of the park, plaintiff entered Livingston Park on a certain morning, and that on said morning the city had negligently taken a bear out of its cage and had chained it to a stake or tree in the park some distance from the bear's cage by a chain from six to ten feet in length, which chain was fastened to a stake or tree, and that there was no fence or barrier around said bear, between it and the public, and that the bear was chained at a place where the public was accustomed to frequent, and that in chaining said bear at said place the city was grossly negligent in that it chained this wild, ferocious beast in a place where the public might easily come into close and dangerous contact with it; that the city was further grossly negligent in not putting a barrier or fence around the place where the bear was chained and could range back and forth, and further grossly negligent in not placing a sign or warning to the public to keep at a safe distance from such ferocious beast; that the city knew or ought to have known that said bear was dangerous, having already attacked human beings; that on this morning on which the plaintiff visited the zoo in said Livingston Park the keeper of the zoo had negligently chained the said bear out in said open space; that a number of people had been feeding said bear on the morning in question with peanuts and candy and other articles of food, all of which was known or ought to have been known to the city by the exercise of reasonable care; that on this morning the plaintiff having seen a number of people feeding said bear, supposing said bear had been placed out in the open where the public might feed him, that plaintiff did take several pieces of candy and did feed said vicious beast; that after she had fed said beast and was withdrawing her hand from near him said vicious and ferocious beast suddenly and without warning leaped upon the said plaintiff and violently threw her to the ground, whereupon he proceeded to snap at plaintiff and caught plaintiff's hand in his mouth, biting her hand entirely through the flesh from the inside of her hand to the outside; that said beast in throwing himself upon the unsuspecting plaintiff did terribly lacerate plaintiff's leg near the hip and did tear great pieces of flesh from her leg, ripping the skin into shreds; that the beast's teeth did mutilate plaintiff's hand almost beyond recognition; that plaintiff was finally rescued from the clutches of this vicious and ferocious beast; that when so rescued plaintiff was violently agitated, extremely nervous, and in a state of collapse; that after plaintiff returned to her home in Canton, Miss., which she did at once, she was compelled to call for the attendance of a physician; that for several weeks she was forced to remain in bed and to endure great physical pain and mental agony; that her mental agony was greatly aggravated by the fear of complications which might at any moment set in due to the filthy claws of this ferocious beast which had so deeply penetrated into her flesh; that her wounds were many days healing; that she has not yet and will not for many months recover from the nervous strain caused by the attack of this wild beast; that she was disfigured by the injuries inflicted by the bear; that she was put to great expense for medicine and for medical fees; that she was unable for a long time to perform the ordinary duties of a wife and mother. Wherefore she sued for five thousand dollars. A second count alleged substantially the same facts as did the first count.

The city of Jackson demurred to the declaration on the ground that the city is in no way responsible for the acts complained of, and the acts complained of are within the governmental scope of its duties and are not such as are imposed on its liability. This demurrer was sustained, the plaintiff declined to plead further, and the suit was dismissed, from which action of the court this appeal is prosecuted.

Appellant contends that the city in operating its park and in maintaining its zoo therein is liable for injuries resulting from the negligence of servants or other employees of the city; that the maintaining of a park and a zoo therein are mere corporate functions and are not governmental functions within the meaning of the law that exempts municipalities from liability for the negligence of their servants and officials in the performance of governmental functions. Counsel for appellant relies upon the following cases: Norberg v. Hagna, 46 S.D. 568, 195 N.W. 438, 29 A.L.R. 841; Kokomo v. Loy, 185 Ind. 18, 112 N.E. 994;Bloom v. Newark, 3 Ohio N.P. (N.S.) 480; Capp v. St.Louis, 251 Mo. 345, 158 S.W. 616, 46 L.R.A. (N.S.) 731, Ann. Cas. 1915C, 245; Denver v. Spencer, 34 Colo. 270, 82 P. 590, 2 L.R.A. (N.S.) 147, 114 Am. St. Rep. 158, 7 Ann. Cas. 1042;Indianapolis v. Baker, 72 Ind. App. 323, 125 N.E. 52;Ehrgott v. Mayor, etc., 96 N.Y. 264, 48 Am. Rep. 622; Weber v. Harrisburg, 216 Pa. 117, 64 A. 905; Barthold v.Philadelphia, 154 Pa. 109, 26 A. 304; Anadarko v. Swain,42 Okla. 741, 142 P. 1104; Ft. Collins v. Roten, 72 Colo. 182, 210 P. 326; Roulier v. Magog Rep. Jud. Quebec, 37 C.S. 246;Canon City v. Cox, 55 Colo. 264, 133 P. 1040; Sarber v.Indianapolis, 72 Ind. App. 594, 126 N.E. 330; Silverman v.New York (Sup.), 114 N.Y.S. 59; Van Dyke v. Utica, 203 App. Div. 26, 196 N.Y.S. 277; Kuenzel v. St. Louis, 278 Mo. 277, 212 S.W. 876; Boise Development Co. v. Boise City, 30 Idaho, 675, 167 P. 1032; Abbott on Municipal Corporations, at page 2255.

Counsel for the appellee cites and relies on 19 R.C.L. 1111; 4 Dillon on Municipal Corporations (5th Ed.), par. 2890;Louisville Park Commissioners v. Prinz, 127 Ky. 460, 105 S.W. 948; Clark v. Waltham, 128 Mass. 567; Steele v. Boston,128 Mass. 583; Blair v. Granger, 24 R.I. 17, 51 A. 1042;Russell v. Tacoma, 8 Wn. 156, 35 P. 605, 40 Am. St. Rep. 895; Bernstein v. Milwaukee, 158 Wis. 576, 149 N.W. 382, L.R.A. 1915C, 435; Bisbing v. Asbury Park, 80 N.J. Law, 416, 78 A. 198, 33 L.R.A. (N.S.) 523; McGraw v.District of Columbia, 3 App. D.C. 405, 25 L.R.A. 691; Harper v. Topeka, 92 Kan. 11, 139 P. 1018, 51 L.R.A. (N.S.) 1032;Nashville v. Burns, 131 Tenn. 281, 174 S.W. 1111; Ackeret v. Minneapolis, 129 Minn, 190, 151 N.W. 976, L.R.A. 1915D, 1111, Ann. Cas. 1916E, 897; Lincoln v. Boston, 148 Mass. 578, 20 N.E. 329, 3 L.R.A. 257, 12 Am. St. Rep. 601; Pope v. NewHaven, 91 Conn. 79, 99 A. 51, L.R.A. 1917B, 1239; Kerr v.Brookline, 208 Mass. 190, 94 N.E. 257, 34 L.R.A. (N.S.) 464;Guzzi v. N.Y. Zoological Society, 192 App. Div. 263, 182 N YS. 258.

These lines of cases represent conflicting views of the courts upon the question as to liability for the negligence of a municipality in properly maintaining its streets and parks, and generally class parks in accordance with the alignment of the particular courts as to the liability of a municipality for negligence in maintaining its streets and roads. What is known as the Massachusetts line of cases, following the supreme court of Massachusetts, holds that cities are not liable for negligence in making streets and roads because in such cases a municipality is exercising governmental functions as distinguished from municipal, corporate functions. What is known as the New York rule follows the decisions of that state upon the liability of a municipality for negligence in maintaining its streets, holding that it is liable for negligence in failing to keep its streets in proper condition, and generally classes parks with streets and roads upon such question, and holds that a municipality is exercising its corporate functions in such cases.

The state of Mississippi is in alignment with the New York rule in so far as liability for negligence in keeping the streets in repair is concerned. See Whitfield v. City of Meridian,66 Miss. 570, 6 So. 244, 4 L.R.A. 834, 14 Am. St. Rep. 596; City ofVicksburg v. McLain, 67 Miss. 4, 6 So. 774; Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452, 30 Am. St. Rep. 521; Carver v. Jackson, 82 Miss. 583, 35 So. 157; City of Pascagoula v. Kirkwood, 86 Miss. 630, 38 So. 547; Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, 39 L.R.A. (N.S.) 649; Hardin v. City of Corinth, 105 Miss. 99, 62 So. 6; Saxon v. Town of Houlka, 107 Miss. 161, 65 So. 124; Higginbottom v. Village of Burnsville, 113 Miss. 219, 74 So. 133; Mayor, etc., City of Vicksburg v. Harralson,136 Miss. 872, 101 So. 713; Atkinson v. Town of Decatur,131 Miss. 707, 95 So. 689.

On the other hand, the state holds that a city is not liable for injuries inflicted by its fire department on the ground that in operating its fire apparatus and fire department, it is in the discharge of a governmental duty, exercising a governmental function, and is not liable for the negligence of its employees in such operation. Alexander v. City of Vicksburg, 68 Miss. 564, 10 So. 62; City of Hattiesburg v. Geigor, 118 Miss. 676, 79 So. 846. The line of demarcation between the exercise of governmental functions and corporate functions is not clearly marked out in the authorities, and it is not an easy matter to deduce from the authorities the true rule of demarcation between the two functions.

In the case of the City of Pass Christian v. Fernandez,100 Miss. 76, 56 So. 329, 39 L.R.A. (N.S.) 649, it was held by this court that a driver of a city cart, engaged in hauling trash and dirt for the city, is not engaged in a "public or governmental duty," which is a duty given by the state to a city as a part of the state's sovereignty, to be exercised by the city for the benefit of the public living within and without the corporate limits, but in such cases is engaged in a "private or corporate duty," and that for the negligence of its driver the city is liable.

By statute, cities are given the power to establish parks and may issue bonds to purchase land and equipment therefor under certain circumstances. There is no specific statute giving the city power to operate a zoo and to keep ferocious and dangerous animals therein, but such power is implied from the grant of power to maintain parks.

It seems to us that the rule making it the duty of the city to exercise reasonable care to make its parks reasonably safe places for people to resort to, and making the city liable for negligence, is the better rule. Certainly it would not be the rule of wisdom to permit a city to fill its parks with dangerous and ferocious animals without having it exercise a high degree of care, if not absolute liability in keeping them safely confined. It is insisted by the appellee that the zoo is a part of the education of the public, and that educating the people is a governmental function, and that no liability exists against the city for negligence in this regard.

It cannot be the law that the city can place in its parks ferocious and dangerous animals by which the safety, and even the lives, of the public would be endangered without requiring the city to keep such animals securely confined. As a general rule persons having animals wild by nature and of ferocious disposition are required to keep such animals confined absolutely, or pay for any damage sustained by a failure so to do. This court held in Phillips v. Garner, 106 Miss. 828, 64 So. 735, 52 L.R.A. (N.S.) 377, that persons possessing such animals are under the absolute duty to keep them safely confined. The same rule was recognized in Ammons v. Kellogg, 137 Miss. 551, 102 So. 562.

While the city may be maintaining the zoo for educational purposes, it is not such an education as the city is required by law to furnish to the public. There is no mandatory duty upon the city either to maintain a park or to keep a zoo therein. The right is permissive rather than mandatory, and we think when the city undertakes to maintain a zoo and to keep therein dangerous and ferocious animals, it must be held to the strict duty of keeping them safely, and that it was negligence on the part of the keeper to chain the bear in the present case in the open park with a chain six or ten feet in length tied to the bear, giving it such a range, and therefore capacity to do harm, of the circumference of a circle of which this chain is the radius.

The city next contends that it is not liable because the plaintiff was an adult in the possession of her mental faculties, and must of necessity know of the dangerous character of a bear, and that her negligence in placing herself within reach of the bear was the sole proximate cause of her injury.

Formerly contributory negligence defeated a right of action even though the defendant was negligent with reference to the matter complained of, but section 502, Hemingway's Code (Laws of 1910, chapter 135), changes the rule; and where negligence exists in both the plaintiff and defendant with reference to the matter complained of, it no longer defeats the action, but merely diminishes the damages suffered in proportion to the amount of negligence attributable to the person injured. By section 503, Hemingway's Code (Laws of 1910, chapter 135), these questions of negligence and contributory negligence are for the determination of the jury.

We think this is a case for the jury, and the judgment of the court will be reversed, and the cause remanded for a new trial.

Reversed and remanded.