Benton v. City of Montgomery

• Decision Date: 08 February 1917
• Docket Number: 3 Div. 173
• Citation: 75 So. 473,200 Ala. 97
• Parties: BENTON v. CITY OF MONTGOMERY et al.
• Court: Alabama Supreme Court

75 So. 473

200 Ala. 97

BENTON v. CITY OF MONTGOMERY et al.

3 Div. 173

Supreme Court of Alabama

February 8, 1917

Rehearing Denied May 24, 1917

Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.

Action by Cornelia C. Benton, as administratrix, against the City of Montgomery and the Montgomery Light & Traction Company. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

The following is count B of the complaint:

"Plaintiff claims of defendant *** for that said city of Montgomery is a municipal corporation and was on and for many years prior to December 17, 1912, a municipal corporation organized under the laws of the state of Alabama, and that to wit, on said day and date, there existed in the city of Montgomery, and within its corporate limits, a public street or highway known as Commerce street; that said street had existed for many years prior to said day and date, and that there was on said day and date, and had been for many years prior thereto, near the north end of said street, the entrance to a subway or underpass leading along the middle of said street in a northerly direction, said entrance being much narrower than the said street of defendant, and being near the center in width of said street; that along the east side of said entrance, and within, to wit, 5 feet of the edge of said entrance, was, and had been for, to wit, five years before said day of December 17, 1912, in said street, a street railway track elevated above the grade of said street about 20 inches; that said street railway track paralleled the said entrance or underpass on the east side thereof from where the same begins, for a distance of about 400 feet, and then curved to the west and crossed the north end of said entrance; that said entrance or underpass is paved with stone for a distance of about 22 feet south of the point where said track crosses the east side of said entrance, and the pavement of said entrance is about 12 feet below the grade of said street, and said side of said entrance is perpendicular that it became and was the duty of said city of Montgomery to maintain a wall of sufficient height along the east side of said entrance where said entrance was of the depth aforesaid or some device calculated and suitable to prevent pedestrians who might attempt to cross said street at said point from falling into said chasm, or to put them on notice of the danger to be incurred in crossing said street at said point. But plaintiff alleges that on said day and date above mentioned, and for several years, about five years, prior thereto, said city of Montgomery did negligently permit the east side of said entrance to be and remain in such condition as that for a distance of about 20 feet south of where said railway track crosses said east side of said entrance or subway there was no wall along said east side of said subway nor was there any other device maintained calculated to prevent pedestrians who might attempt to cross said street at said point from falling into the chasm made by the said entrance, or to put them on notice of the danger to be incurred in attempting to cross said street at said point that as a result of such negligence plaintiff's intestate, Robert W. Benton, did on, to wit, said December 17, 1912, at or about 7 o'clock p.m., while attempting to cross said street at said point fall into said entrance, and sustain injuries from which he shortly afterwards died, which said injuries were proximately caused by the negligence of defendant as aforesaid. Plaintiff alleges that prior to the institution of this suit, and within six months of the time of said injuries received by plaintiff's intestate, plaintiff filed with the clerk of defendant city of Montgomery a sworn statement setting out substantially the manner in which said injuries were received, and the date, time, and place where said intestate was injured, and the amount of damages claimed. As showing the liability of defendant Montgomery Light & Traction, a corporation, for said injuries, plaintiff alleges that the city of Montgomery was made liable for the action for damages here claimed by reason of the unauthorized or wrongful acts, or negligence, carelessness, or unskillfulness, of said Montgomery Light & Traction Company in this, for that defendant city of Montgomery constructed or caused to be constructed years ago, to wit, ten years, along the entire east side of said entrance to said underpass, a wall of sufficient height and strength to prevent pedestrians exercising ordinary care and diligence from falling into said entrance in attempting to cross said street; that the predecessors of defendant the Montgomery Light & Traction Company, to wit, the Montgomery Street Railway Company, tore down that part of the wall on the east edge of said entrance to said subway where it is alleged there was no wall at the time of the injury, to wit, six years before the time of said injury, for the purpose of operating a street railway whose track was then being built along near the said part of said wall, to wit, about 3 feet from said wall, and permitted same to remain in the condition alleged until said railway was succeeded by defendant Montgomery Light & Traction Company, who operated cars along said track, and permitted same to remain in such condition up to the time of the injuries complained of; that said Montgomery Street Railway Company, and after them said Montgomery Light & Traction Company so occupied said east edge or bank of said entrance from the time of tearing down said wall until the time of the alleged injuries; that it became the duty of defendant Montgomery Light & Traction Company, so occupying said edge of said subway, to erect some barrier or maintain some other device

at said place calculated to prevent pedestrians who might attempt to cross said street at said point from falling into the chasm made by said entrance, or to put them on notice of the danger to be incurred in attempting to cross said Commerce street at said place. But plaintiff avers that said defendant Montgomery Light & Traction Company negligently permitted said edge of said entrance to remain in the condition alleged until the time of the injuries complained of, and plaintiff alleges that said negligence is the proximate cause of the injuries complained of."

The following is plea 2 interposed by Montgomery Light & Traction Company:

"For further plea defendant says: Plaintiff's intestate was guilty of negligence which contributed proximately to the injuries complained of in the complaint, in that on said day and date there existed at the foot of Commerce street a viaduct or underpass, which is described in the complaint, by legal authority; that over said viaduct, for the convenience of persons desiring to cross from one side of Commerce street to the other, was a safe and commodious bridge erected for the convenience of all those desiring to cross said Commerce street at that point thereof from one side to the other; that said bridge was visible and easily discovered at any time in the day or night by any person desiring to cross said street; that the other part of said underpass or viaduct was visible to all persons at any time of the day or night, in no condition to be safely crossed by the traveling public, but plaintiff's intestate, notwithstanding the fact that the foot of the bridge above mentioned was plainly apparent to him as a safe mode and safe route for his going from one side of said street to the other, negligently undertook to cross said underpass at another portion of the same, without any necessity for so doing, and as a consequence of his said negligence fell into said viaduct, which said negligence contributed proximately to his injuries."

Here follows Exhibit A, an ordinance authorizing Montgomery Street Railway Company, its successors and assigns, to open, operate, and extend its tracks on Commerce street, and along the east side of the underpass, and over the underpass, and across Commerce street.

The following charges were refused to plaintiff:

"(2) The court charges the jury that a pedestrian has a right to cross the street of a city, although there may be in and along said street a street railway track elevated above the grade of the street, and the mere fact that it is elevated to the height of 21 inches does not take away that right."

"(5) The court charges you that, if you are reasonably satisfied from the evidence that plaintiff's intestate was injured in the manner and at the time and place alleged, and was at the time exercising that degree of diligence which a reasonably prudent man similarly situated would have exercised, you must find for plaintiff."

"(8) If you are reasonably satisfied from the evidence that plaintiff's intestate sustained the injuries complained of at the time and place and in the manner alleged in the complaint, and was at the time exercising that degree of diligence which would probably be exercised by a person of ordinary prudence and diligence, situated under like circumstances, you must find a verdict for plaintiff."

The following charges were given for the defendant Montgomery Light & Traction Company:

"(C) If the jury find from the evidence that plaintiff's intestate while walking along or across the trestle of the Montgomery Light & Traction Company their verdict must be for defendant.

"(D) If there was light from the street lights or otherwise, so that any dangerous or unsafe excavation in Commerce street would have been revealed by said lights, and you should believe from the evidence that plaintiff's

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