Barks v. Jefferson County

• Decision Date: 29 October 1898
• Citation: 24 So. 505,119 Ala. 600
• Parties: BARKS v. JEFFERSON COUNTY.
• Court: Alabama Supreme Court

24 So. 505

119 Ala. 600

BARKS v. JEFFERSON COUNTY.

Supreme Court of Alabama

October 29, 1898

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by Charles O. Barks against Jefferson county. From a judgment for defendant, plaintiff appeals. Reversed.

The facts of this case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, at the request of the defendant, gave the general affirmative charge in its behalf. To the giving of this charge the plaintiff duly excepted. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the ruling of the court in giving the general affirmative charge requested by the defendant.

George A. Evans, for appellant.

Walker Porter & Walker, for appellee.

COLEMAN J.

The appellant sued the county to recover damages for personal injuries sustained by the falling of a bridge in Jefferson county, erected over Village creek. The evidence is without conflict, and shows that, as plaintiff was driving over the bridge, it fell, and that he was personally injured. It also shows that the bridge was, by written contract entered into in pursuance of orders and authority of the commissioners' court of Jefferson county, constructed at a point selected by the engineer, under the instruction of the commissioners' court, and that a road leading to and from the bridge was opened and made ready for travel, under the superintendence of the county engineer, and that, after the completion of the road and bridge, the same was reported to the court of county commissioners by the engineer, and that the work of grading the road and erection of the bridge was paid for by orders of the commissioners' court. It was further shown that, prior to the erection of the bridge there was an old road leading from Ensley City to Pratt City which ran alongside a dummy line, and on this road there was a bridge over Village creek very close to the dummy line bridge; that the new bridge was about 150 yards away from the old bridge, and that, as soon as the new bridge was erected and roadbed graded for travel, the old bridge was torn down and the public ceased to use the old road and old bridge at the place of crossing the creek, but began to use the new road and bridge. As soon as the road was prepared for travel and use, and the bridge completed, the public began to use it, and used it continuously until the falling in of the bridge; and it appears that no guaranty, by bond or otherwise, that the bridge should continue safe for the passage of travelers and other persons, as provided by statute (section 2512 of the Code of 1896), was required or executed. There was no record evidence that the road leading to and from the bridge was ever declared to be or established as a public road by the court of county commissioners, other than the orders and entries above stated, relative to the grading of the road, and contract for the erection of the bridge, and orders for the payments. The bridge and new road had been in use about three months.

Section 957 of the Code of 1896, referring to commissioners' courts, is as follows: "The court possesses original jurisdiction, to the establishment, change or discontinuance of roads, bridges, causeways, and ferries within the county to be exercised in conformity with the provisions of this Code." Chapter 59 of article 1 of the Code of 1896 contains the statute law relative to public roads. Section 2445 provides that "no public road can be established, changed, or discontinued except on application, to the court of county commissioners." Other sections of the Code under this article provide that the application shall be made by petition, and as to the contents of the petition; and by many decisions it has been held that the statute must be complied with, to give the court jurisdiction to establish, change, or discontinue a public road. McDade v. State, 95 Ala. 28, 11 So. 375. There is no evidence of such proceedings in the record; but section 5399 of the Criminal Code of 1896 reads as follows: "Any order of the court of county commissioners by which a road is recognized as a public road is presumptive evidence thereof." This statute has been in force a great many years, and, though now found only in the Criminal Code, has been applicable to cases other than criminal prosecutions. Oliver v. Loftin, 4 Ala. 240. ...