City of Birmingham v. Crane
Decision Date | 21 November 1911 |
Citation | 175 Ala. 90,56 So. 723 |
Parties | CITY OF BIRMINGHAM v. CRANE. |
Court | Alabama Supreme Court |
Appeal from City Court of Birmingham; C. W. Ferguson, Judge.
Action by Hugh C. Crane, as administrator of the estate of Lloyd Kerr, deceased, against the City of Birmingham. From a judgment for plaintiff, defendant appeals. Affirmed.
The complaint is as follows: Count 1, as amended Then follows an allegation of the presentation of the claim to the mayor and board of aldermen and disallowance of same. 2, As amended: Same as 1, down to and including the words "reasonably safe condition," where they first appear in said count, and adds: Then follows the same averment of notice of the defect, and presentation and disallowance of claim, as in count 1. The demurrers raise the proposition that the counts did not aver sufficient knowledge of the defects on the part of the defendant, or notice to the defendant of the defects; that, if there was negligence, it was in the exercise of its governmental functions, for which the defendant was not liable; that, if there was negligence, it was in the adoption of a plan of drainage and sewerage, for which the defendant was not liable. It alleges negligence of the defendant in maintaining a street or sewer in a certain condition, but does not aver or show that said street or sewer was maintained in any other condition than that contemplated in the original plan of defendant for the improvement of said street and construction of said sewer. It shows on its face that the defendant maintained the street and sewer complained of in the same condition as originally contemplated in the plans of defendant.
The amendments to the counts consisted in adding the words "to exercise reasonable care" just after the words "was in duty bound," where they occur in said count. To the amended counts the following demurrers were interposed, in addition to those above set out:
Defendant filed the plea of the general issue and the following special pleas: (2) "To each count defendant says that the accident and death of plaintiff's intestate would not have happened, but for the proximate contributory negligence of the father of plaintiff's intestate, who had custody and control of him at said time, which said proximate contributory negligence consisted in this: That the said father of plaintiff's intestate negligently permitted plaintiff to wade in a drain in said street while water was flowing down the same into the mouth of an open sewer, and plaintiff's intestate was thereby washed into said open sewer, and drowned." (3) Same as 2, except that the contributory negligence is alleged to be that of the mother instead of the father. (4) Same as 2, except the contributory negligence is alleged to be that of a person unknown to the defendant, who had custody and control of plaintiff's intestate at the time. (5) "To each count of the complaint says the plaintiff's intestate, at the time of being washed into said sewer in said street as set out in the complaint, was wading in water in a drain in said street which flowed into said sewer; that said sewer was constructed and left open, and said drain was constructed to accumulate the waters and convey them into said sewer, as set out in said complaint, according to a plan adopted by the mayor and aldermen of Birmingham in its governmental capacity for the drainage of the city of storm water; that said drain and sewer were constructed strictly in accordance with said plan and that there was no negligence on the part of the defendant, its officers, agents, or servants, in leaving open the mouth of said sewer as aforesaid, or in the construction of said drain as aforesaid, but that the same was constructed in a skillful manner, and in accordance with said plan, and was maintained in accordance with said plan." (6) Same as 5, except it is alleged that the sewer was constructed by the city in the exercise of its governmental capacity. (...
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