City of Vicksburg v. Hennessy.

pavement toward the carInstead, therefore, of con

less, however, a few feet out from the riage-way portion of Market street. structing steps directly down from the northern end of the pavement, the city authorities, about ten years ago, caused the pavement to be widened a few feet, until its eastern edge reached out to ground where the descent was less, and there constructed steps leading down to the lower level of First East street.

The advantage of the arrangement was that the ascending or descending pedestrian only walked up or down two steps, instead of five or six, as he would have been compelled to do if the steps had been built directly in front of the northern end of the pavement. Its effect was that the pedestrian walked north up to the declivity, and then facing east, as if about to cross to the other side of Market street, took about two paces east, then faced north again and walked down two broad brick steps into First East street.

The arrangement was a good one,- perhaps the best that could have been made; but it had one serious defect. No railing or obstruction of any kind was erected to prevent the wayfarer from walking or falling down the steep declivity at the end of the pavement, which he would inevitably do if he continued north instead of turning to the east. Of this there was no danger in the day time, nor at night, so long as the lamp placed immediately at the spot was kept burning. Even in the absence of a light, there should have been no danger to a man of ordinary prudence, well acquainted with the locality, unless the night was so dark as to prevent him from perceiving that he had arrived at or near the intersection of the streets. The city had a contract with the gas company to keep its lamps lit; but whether this particular lamp had been lit on the night of the accident and extinguished by the wind, or whether it had been neglected by the lamp-lighter, is uncertain.

The defendant in error had lived for six years in the immediate neighborhood, and in sight of the locality, and was consequently well acquainted with it. On the evening of Dec. 24, 1870, he walked with a friend along the west side of Market street toward this declivity, intending to cross First East street, and "was not thinking," as he says, of the dangerous character of the place. The lamp was not burning. He says: "When I got near to the abrupt termination (of the pavement), my attention was called to it (by his friend), and I then attempted to reach the steps; but

City of Vicksburg v. Hennessy.

there was a projection of the brickwork of the gutter there, and I struck my foot against it in the dark, and fell down over the steps and the abrupt place. It is fully five feet (down to the level of First East street) at the point of the abrupt termination of the pavement, but I did not fall over three feet, as I caught on the steps." As before remarked, the only defect in the arrangements made by the city for descending this natural declivity was the failure to erect a railing at the termination of the pavement, in order to prevent persons from continuing directly north, and thereby precipitating themselves below. In all other respects, as testified by various witnesses, the arrangements were excellent.

If we could consider the proof as showing that the defendant in error did, by reason of the absence of such railing, and in a moment of forgetfulness, walk or fall down this abrupt descent, the question presented would be this: Where the municipal authorities have arranged a safe and convenient means of avoiding a place naturally dangerous, but have omitted to fence off the traveller from the straightforward and perilous path, will they be responsible to a person well acquainted with the locality and with the means which have been provided for escaping the danger, who, in a moment of oblivion, pursues the path of peril, and sustains injuries thereby?

The universal rule in this class of cases is that the injury must proceed wholly and solely from the defective highway; that the plaintiff must be entirely free from any negligence which contributed to the result, and that the burden of showing affirmatively that he exercised at least ordinary care and prudence is upon him. Unless he establishes this he must fail, notwithstanding he has shown the greatest remissness on the part of the corporate authorities. Lane v. Crombie, 12 Pick. 177; Moore v. Abbot, 32 Me. 46; Rusch v. Davenport, 6 Iowa, 443. It would seem from this universally recognized principle that the interrogatory propounded above must be answered in the negative, unless we can say that momentary forgetfulness is not inconsistent with ordinary prudence.

A decision of the question is not necessary, because, as we understand the plaintiff's own testimony, the absence of the railing (which was the only fault of which the city authorities were guilty) had nothing to do with the injuries sustained. He says that he did not fall from the abrupt termination of the pavement where the descent was five feet, but that he fell across the steps where it was only three (other testimony shows it to be less than three at

City of Vicksburg v. Hennessy.

the steps). Now, in order to reach and fall across the steps, he must, before he commenced to fall, have already faced east away from the unprotected declivity, and in the direction of the steps. If he had fallen over the precipitous descent, he would have fallen due north. As it was, he fell east, or north-east. This is rendered certain by his statement that he attempted to reach the steps, but struck his foot against a projection of the brickwork of the gutter, "and fell down over the steps." His fall, then, was produced, not by the absence of a railing, but by his stumbling over the gutter; and he fell, not down the precipice which the city had failed to guard, but over the broad and convenient steps which it had provided for making a safe descent. All the witnesses testify that these steps were well built, of convenient and easy access, in no wise obstructed by the small gutter that ran through the pavement for the purpose of draining it, just between the original and the widened portions of it. No witness, save the defendant in error, speaks of any projection in the brickwork of this gutter. We conclude, therefore, that the fall proceeded in no manner from the absence of a railing, but from some clumsiness on the part of the defendant in error in stepping across that portion of the pavement which lacked nothing to render it reasonably safe for people of ordinary prudence.

Municipal corporations are not liable for every accident that may happen in their streets. They are not insurers of the safety of those who use them. Their duty is discharged when they have made them reasonably safe for people of ordinary prudence; nor are they required to furnish the best possible method of passing around natural obstacles. Especially will those be estopped from complaining who, well knowing the means which have been provided for avoiding danger, have sustained injuries in consequence of their own neglect to avail themselves of them. 2 Dill. on Mun. Corp. (2d ed.) 917, and cases cited in note 1; Raymond v. Lowell, 6 Cush. 524.

Judgment reversed and cause remanded.

Harlow v. St. Louis Mutual Life Insurance Company.

HARLOW V. ST. LOUIS MUTUAL LIFE INSURANCE COMPANY.

(54 Miss. 425.)

Life insurance suit to rescind contract and recover premiums paid.

▲ policy of life insurance stipulated that default in the payment of any of the annual premiums to become due after the first two should not work a forfeiture of the policy, but that the amount insured should be then commuted or reduced to the sum of the annual premiums paid. The insured brought suit to have the contract declared rescinded, and to obtain a decree against the insurance company for the sums which he paid as premiums, upon the ground that the company asserted that the policy was forfeited by his fail. ure to pay, and declined to issue a "paid-up policy" equal to the sum of the several annual premiums paid. Held, that such suit could not be maintained, where the only obligation imported by the terms of the policy was to pay within ninety days after due notice and proof of the death of the assured.*

ILL to rescind life insurance contract and recover premiums.

BILL

A. M. Harlow filed this bill against the St. Louis Mutual Life Insurance Company, a corporation of the State of Missouri, alleging that, on Aug. 14, 1868, he took a policy of life insurance from defendant, whereby said company, in consideration of an annual premium of $188.20,-paid on or before August 14, as follows: An annual premium-note of $61, and quarterly premium-notes of $31.80 each, agreed with the complainant, his representatives and assigns, for the use of B. F. Harlow, trustee, within ninety days after due notice and proof of the complainant's death, to pay the sum of $5,000, deducting the balance of annual premiums unpaid, if any, and all notes taken for premiums unpaid at the time. The bill set out the condition stated in the opinion, and further alleged that the complainant paid the premiums up to 1872, amounting to the sum of $636; when he stopped paying, and demanded a paid-up policy, which the company declined to give, on the ground that he had forfeited his policy by the non-payment in advance of the interest due on his notes in the hands of the company. The prayer was for a rescission and a discovery and account, etc. A demurrer to the bill was sustained, and complainant appealed.

*See McCall v. Phænix Mut. Life Ins. Co. (9 W. Va. 237 Am. Rep. 558.

Harlow v. St. Louis Mutual Life Insurance Company.

Nugent & Mc Willie, for appellant.

Harris & George, for appellee.

CAMPBELL, J. This bill is not maintainable, whether by its terms the policy is non-forfeitable or not. The sole object of the bill is to recover the sums the appellant has paid the appellee as premiums on the policy of insurance. The prayer of the bill for a rescission of the contract of insurance is merely as a means to that end. The aid of a court is not needed to put an end to the contract. The appellee claims that it was terminated by the failure of the appellant to pay in advance the interest on his notes held by the appellee. The appellant claims that, by the terms of the policy, he is entitled to a "paid-up policy" equal to the sum of his several annual premiums paid; and because this is denied by the appellee, who asserts that the policy has been forfeited, the appellant asserts a right to have the contract rescinded, and to obtain decree against the appellee for what may be found due upon an account taken.

If it be true, as averred by the appellant, that the policy has not been forfeited, but is now “alive” and in full force, an action will lie upon it when the contingency mentioned in it shall occur and default in payment shall be made by the appellee. The stipulation of the policy is that default in the payment of any of the annual premiums to become due after payment of the two annual premiums next due and payable after the date of the policy shall not work a forfeiture of the policy, "but the sum of $5,000, the amount insured, shall be then commuted or reduced to the sum of the annual premiums paid." There is no agreement to issue to the assured & "paid-up policy" in lieu of the former. The provision of the first condition in the policy is that non-payment of any annual premium, after the first two becoming due after the issuance of the policy shall have been duly paid, shall work such a change in the policy that the sum of $5,000 shall be ipso facto reduced to the sum of the annual premiums paid. If the policy is still in force by virtue of its first condition, notwithstanding default by the appellant in payment of any annual premium after the first two which became due next after the date of the policy had been paid, the only obligation its terms import is to pay "the sum of the annual premiums paid" within ninety days after due notice and proof of the death of said assured.