Town of Cullman v. McMinn

• Decision Date: 16 April 1896
• Citation: 19 So. 981,109 Ala. 614
• Parties: TOWN OF CULLMAN v. MCMINN.
• Court: Alabama Supreme Court

19 So. 981

109 Ala. 614

TOWN OF CULLMAN v. MCMINN.

Supreme Court of Alabama

April 16, 1896

Appeal from circuit court, Cullman county; H. C. Speake, Judge.

Action by C. R. McMinn against the town of Cullman. There was a judgment for plaintiff, and defendant appeals. Reversed.

This action was brought by the appellee, Charles R. McMinn against the town of Cullman, a municipal corporation, to recover damages alleged to have been sustained by the plaintiff while crossing a bridge, within the corporate limits of the defendant, which was out of repair. The rulings of the court upon the pleadings are sufficiently shown in the opinion. It is not deemed necessary to set out in detail the facts as shown by the bill of exceptions. There was some evidence tending to show that plaintiff rode over the bridge faster than a walk, and there was introduced in evidence an ordinance of the defendant prohibiting a person driving over a bridge faster than a walk. Among the written charges requested by the defendant, to the refusal to give each of which it separately excepted, were the following: (6) "The court charges the jury that if they find, from the evidence, that plaintiff rode over said bridge faster than a walk, then so riding is negligence by itself on his part." (12) "The court charges the jury, at the request of the defendant, that if they believe, from the evidence, that there was, at the time of the injury complained of, an ordinance of the town of Cullman, duly adopted and ordained, providing that no person shall ride or drive over any bridge in the town limits faster than a walk and if they further believe, from the evidence, that the plaintiff, when injured, was riding over the bridge faster than a walk, then the jury must find a verdict for the defendant." There was judgment for the plaintiff assessing his damages at $135. The defendant appeals from this judgment, and makes 50 assignments of error, calling in question the several rulings of the trial court to which exceptions were reserved.

Geo. H Parker and Will G. Brown, for appellant.

BRICKELL C.J.

The liability of municipal corporations for injuries to persons lawfully using the streets, caused by defects or obstructions therein, springs from the duty, imposed upon them by law, to keep the streets in a safe condition for public use. It is said by Judge Dillon: "Where the duty to keep its streets in safe condition rests upon the corporation, it is liable for injuries caused by its neglect or omission to keep the streets in repair, as well as those caused by defects occasioned by the wrongful acts of others; but, as the basis of the action is negligence, notice to the corporation of the defect which caused the injury, or of facts from which notice thereof may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to the liability." 2 Dill. Mun. Corp. (4th Ed.) § 1034; City Council v. Wright, 72 Ala. 411.

The trial was had on the second and fourth counts of the amended complaint, and on two counts subsequently filed. To these counts numerous demurrers were interposed by the defendant the grounds assigned being that they did not aver notice to the defendant of the defect in the bridge causing the injury, nor facts from which notice could be inferred. The averment of the second count is "that the defendant negligently suffered a bridge on Fourth street *** to be out of repair *** for a long space of time, and especially that it negligently suffered the said...