Nesbitt v. City of Greenville

Woods, J., delivered the opinion of the court. There is much evidence in the record tending to show that the highway at the point where plaintiff’s deceased husband received his injuries was a public street in Greenville, and we have no reason to suppose that the peremptory instruction of the court below had any relation to this phase of the case. Let us examine, briefly, the evidence which was offered for [28] the purpose of showing negligence in the municipality in permitting an obstruction for a long while in the public street —an obstruction, as it now appears, which was dangerous to persous passing along'or using such street. The obstruction was erected by one Pace about two years before the injury complained of occurred. Whether erected by the permission of the municipality does not appear from the record ; but this is not important, since the city’s liability for its continuance is clear. There is no dispute as to the knowledge of the city of the existence of the structure in the street. The structure was a tank, holding seventy or eighty barrels of water, placed on a frame-work, which was itself placed on posts from four to six feet high above the surface of the street. The water which was stored in this tank was used for street-sprinkling purposes, and for consumption by citizens. It was immediately in the street, aud very near the base of a levee which had been erected across the west end of the street by the board of levee commissioners. To this tank directly persons using the river water were accustomed to come for their supplies; and to it the street-sprinkler came directly also. Within about seventy feet of the tank there were two coal-yards, and all the business of these yards was conducted near it. Now and then small steam-boats landed at the foot of this street, and fishing-vessels sometimes tied up at its foot also; and persons from such boats and vessels passed up the street in question, and by this tank, from the river. Persons on foot occasionally used this particular portion of the street to reach the levee. This tank, thus built and thus situated and thus used, suddenly fell one day in August, 1890, and in its fall the husband of appellant — who at the moment was under it — received injuries which resulted in his death. The immediate cause of the fail of the tank was found to be the breaking in two of one of the timbers constituting the frame-work upon which the tank sat. . This broken piece of timber was found to have been unsound — “ water-sobbed,” as the witness who testified [29] to this fact characterized it. The same witness had, not a great while before, discovered the “ water-sobbed” and unsafe condition of this piece of timber. « We agree with counsel for appellee that ordinary care over its streets is the measure of diligence imposed upon municipal corporations, and that they are not insurers against injury to persons using the public streets. We do not dissent from the elementary principle that before the municipality can he held liable for .injuries resulting from nuisances or defects in its streets, it must have knowledge of the nuisance or the defect, and its danger. Notice there must be to charge the municipality, but this notice may be actual or constructive or implied. Where the obstruction is created by the city itself, or where it permits an obstruction erected by another in its streets, it must take notice of such defects in the obstruction as ordinary care will discover. The structure in a street, to every part of which the entire public has the right of free access, must be erected in such manner and from such materials as to be reasonably safe, and it must be kept in this safe condition. Proper repairs, from time to time, are as much the duty of the city as a safe structure originally. Inseparably connected with this statement is another, viz.; that a municipality is liable for injury resulting from its defective structures where, by reasonable diligence, it might have acquired knowledge of such defect. The common knowledge of mankind is chargeable to a municipality-also. The knowledge of the action of the elements on structures of wood, and of the liability of timber to decay under certain conditions, is to be attributed to municipalities, just as to natural persons. The duty of the municipality to exercise ordinary care to detect such natural decay, and to guard against injuries therefrom, follows necessarily. Recurring now to the facts put in evidence to show the appellee’s negligence and consequent liability, we are of the opinion that .the city’s freedom from culpability was not so manifestly clear as to leave no [30] room for differences of opinion among reasonable men, and therefore that the question of appellee’s negligence should have been submitted to the jury. Was the deceased free from contributory negligence? Was he guilty of such misuse of the street at the time he was injured as to absolve the municipality from liability in any event? The deceased was engaged in preparing in this open street the timbers necessary to the erection of a dump just beyond the levee, in the river, under a contract with the city. He had been engaged in that work, with the laborei’s employed by him, for two weeks or more. We take it to be true that the city had the same right to occupy such part of the street in the prosecution of this public work as might be convenient and necessary, in the same manner and to the same extent that an abutting lot-owner may be permitted to employ a part of the street in the erection of a building upon ■his lot. Presumably, too, the deceased was using the street with the knowledge and under the permission of the municipality. While thus lawfully engaged in the street, the deceased, as an incident to his work, had occasion to sharpen a saw; and in order to do this piece of work, incident to the main enterprise, he placed himself for a few minutes under this tank, in a part of the public street, there being no apparent danger from the structure, and while so situated was fatally injured by the fall of the tank. Suppose he had stood outside the edge of the tank while engaged in his incidental work of saw-sharpening; suppose he had been simply standing near it, supervising the woi’k of his hands, and the injury had-occurred, Would he-have been so clearly guilty of contributory negligence, or -such misuser of the street, as to leave no room for difference of opinion as to his culpability? On all the facts in the case before us, can it be affirmed that only one conclusion can be drawn by reasonable men? Would all reasonable men certainly draw the same inference of contributory negligence from all the evidence in the case ? [31] Was there nothing material, of fact or inference, as to which reasonable men might not honestly differ ? We intimate no opinion as to the negligence of deceased, but we are of the opinion that the question should have been submitted to the jury. Reversed and remanded.