Birmingham Ry., Light & Power Co. v. Donaldson

• Decision Date: 06 April 1915
• Docket Number: 502
• Citation: 68 So. 596,14 Ala.App. 160
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. DONALDSON.
• Court: Alabama Court of Appeals

68 So. 596

14 Ala.App. 160

BIRMINGHAM RY., LIGHT & POWER CO. v. DONALDSON.

No. 502

Court of Appeals of Alabama

April 6, 1915

Rehearing Denied May 11, 1915

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by John B. Donaldson against the Birmingham Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The following is the complaint:

Count 1. Plaintiff claims of defendant *** damages for that *** defendant company owned and operated street cars on Nineteenth street, in the city of Birmingham, where the same intersects Sixth avenue, in said city; the defendant company or its servants or employés, acting within the line or scope of their employment by defendant, negligently allowed the tracks upon which said cars run in said streets to be in a dangerous condition at said point, in this, that they were not sunk or let down into the street. Plaintiff avers that in attempting to cross defendant's tracks at said point he struck his foot against one of said tracks, and was caused thereby to fall on or against another of said tracks in said avenue, or against a switch connected with said track and a part thereof, and suffered injuries as follows. *** Plaintiff avers that all of his said injuries and damages were proximately caused by reason of the negligence of defendant or its servants or employés, acting within the line and scope of their employment, in negligently failing to maintain the track of said street cars on Sixth avenue and Nineteenth street, which is a public highway, in a proper and safe condition for public travel, and for persons of his age plaintiff being 68 years old.

Count 2. Same as 1, except that it is alleged that defendant company or its servants or agents, acting within the line or scope of their employment, negligently left said track or tracks at said point in a dangerous condition, and in a condition which was dangerous to public travel, in this, that said tracks were negligently uncovered and exposed, and allowed to remain uncovered and exposed, and allowed to project from the ground. This count concludes in the same language as count 1.

Count 3 alleges the nuisance maintained on the same statement of fact as appears in count 1.

The ordinance set out in count 6 is as follows:

It shall be the duty of every person or corporation operating street cars over the streets and avenues of the city of Birmingham to keep in repair that part of the street between the said tracks of such railroad, and for two feet on either side thereof, and all street railroad tracks must be kept and maintained so as not to impede the free passage of vehicles over them.

Plea 3 asserts that in complying with the improvement ordinance which was set out defendant, in order to pave that part of said highway between the tracks of said railroad and for the requisite distance on each side of the tracks, had to excavate and remove therefrom large quantities of material of which said highways were composed, and replace the same with slag and paving material, and at the time plaintiff was injured said highways were obstructed only to such an extent as was necessary and proper in order to do said paving in a proper and workmanlike manner, and it was necessary for them to be so obstructed at said time in order for said paving to be done in a proper and workmanlike manner.

Charges made the bases of assignments of error 19 and 20 are as follows, given for plaintiff:

(19) If you believe from all the evidence in this case that plaintiff exercised such prudence and care as a man of ordinary care and prudence would have exercised had he been similarly situated, then he was not guilty of negligence, and the plea of contributory negligence failed for want of proof.

(20) Defendant has the burden of proving its pleas, and, if the evidence in this case shows that plaintiff was crossing defendant's track in the public highway near the intersection of Sixth Avenue North and Nineteenth street, in the city of Birmingham, and in crossing he was injured by falling into a hole or excavation between defendant's track on said highway, while exercising that care and prudence that is ordinarily exercised by prudent men similarly situated, then the plea of contributory negligence has not been sustained.

(21) Defendant in this case is liable for the act or acts of all of its servants, agents, and employés done in the line or scope of their employment, whether done in obedience to special instructions or in violation of instructions.

The following charges were made the bases of the following assignments of error, because of their refusal to appellant:

(23) I charge you that the fact that other people passed over the excavation between the tracks of defendant at the intersection of Sixth avenue and Nineteenth street would not relieve plaintiff of the duty of exercising due care in crossing said excavation.

(24) The age of plaintiff is a circumstance to be taken into consideration in determining whether or not plaintiff exercised reasonable care in attempting to cross said Sixth avenue.

(26) If the jury believe from the evidence that, by the exercise of ordinary care and prudence, plaintiff could have avoided the excavation in and along defendant's track at the intersection of Sixth avenue and Nineteenth street, and that plaintiff failed to exercise such care and prudence, and such failure contributed in the slightest degree to his alleged injury, he cannot recover.

(28) If you believe the evidence, you cannot find that plaintiff was injured as a proximate consequence of the willful, wanton, or intentional conduct of defendant or of its servants, agents, or employés.

Tillman Bradley & Morrow and John S. Stone, all of Birmingham, for appellant.

Allen & Bell, of Birmingham, for appellee.

BROWN J.

The right of the street car company to lay its tracks on the public streets carried with it the duty imposed by the statute (Code 1907, § 1269), which provides:

"Street and other railroad companies shall be required to keep their tracks in repair, using such rails as may be prescribed, and shall maintain and keep in repair the streets between their rails and for eighteen inches on each side, in such manner as the council may prescribe. Any public utility using the streets of the city or town shall at all times, in the manner prescribed by the council, render the use of such streets safe to vehicles and to persons, and all tracks on such streets shall, when required by the council, be placed at any fixed grade, and changed, free of expense to the municipality, when *** necessary."

And if injury to one entitled to use the street so occupied as a way of travel proximately results from a failure to meet this duty by allowing the street within the zone fixed by the statute to become dangerous as a way of public travel, a case of liability is made. Street Railway Co. v. Smith, 146 Ala. 324, 39 So. 757; Birmingham Union Ry. Co. v. Alexander, 93 Ala. 133, 9 So. 525; 1 Nellis on Street Railways (2d Ed.) § 161; 2 Elliott on Roads and Streets (3d Ed.) § 970; Groves v. Louisville Ry. Co., 109 Ky. 76, 58 S.W. 508, 52 L.R.A. 448, and notes; State v. Jacksonville Street Ry. Co., 29 Fla. 590, 10 So. 590.

"It is a rule of law, as it is a lesson of common experience, that precautionary requirements increase in the ratio that danger becomes more threatening," and the duty imposed by the statute on the street railway company to maintain the streets occupied by its tracks so as to "render the use of such streets safe to vehicles and persons" requires that they be kept in such condition that the ordinary and expected travel of the locality may pass with reasonable ease and safety. 1 Nellis on Street Railways, § 161, p. 360; L. & N.R.R. Co. v. Webb, 97 Ala. 311, 12 So. 374. "The duty to keep in repair is to be performed at once on the arising of occasions for repair, or the doing of it put off for a reasonable time, if the nature of the occasion warrants delay. In the latter case the duty to keep in repair carries with it the duty to guard the public against harm from the repair being delayed. This may be done by placing barriers by day, and barriers and lights by night, about the defective place, or some temporary expedient sufficient for the time, such as a bridge over the opening or founderous place." 1 Nellis on Street Railways, supra.

If it can be said that count 1 of the complaint is defective for failing to aver that the defendant occupied the street by its street railway at the point of the alleged injury, this defect is not specifically pointed out by demurrer, and, in the absence of objection thus made, the count is sufficient in this respect to sustain a judgment. Slight v Frix, 165 Ala. 230, 51 So. 601; Code, § 5340. In construing a count of the complaint, to determine whether its averments are equivocal or not, it is not permissible to segregate one part from the other, but all of its averments must be construed and considered together. L. & N.R.R. Co. v. Smith, 163 Ala. 141, 50 So. 241. When the averments of count 1 are thus construed, it appears with certainty to a common intent that the rails or "track upon which said cars run" were not let into the street so as to form an even surface, but were allowed to extend above the surface of the street so as to obstruct the use and create a condition rendering its use dangerous as a way of public travel, and plaintiff, while in the rightful use of the street, received his injuries as a proximate result of this condition. The averment to the effect that the defendant failed to maintain its tracks "in a proper and safe condition for public travel" is, in substance, the language used in the statute, "render the use of such streets safe to vehicles and to persons,"...