City of Albany v. Black

• Decision Date: 25 March 1926
• Docket Number: 8 Div. 792
• Citation: 214 Ala. 359,108 So. 49
• Parties: CITY OF ALBANY v. BLACK.
• Court: Alabama Supreme Court

108 So. 49

214 Ala. 359

CITY OF ALBANY v. BLACK.

8 Div. 792

Supreme Court of Alabama

March 25, 1926

Appeal from Circuit Court, Morgan County; J.E. Horton, Judge.

Action by Hosie Black against the City of Albany. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Where street obstruction was placed by superintendent of streets at direction of mayor, count alleging placing by agents of city acting within employment held unsupported by evidence.

Count 1 avers the filing of a statement of claim with the city clerk and a demand upon the mayor for the names of persons who might be jointly liable with the municipality, and that compensation for injury had not been made and such names had not been furnished. It alleges that plaintiff was injured December 25, 1922 (as specified), "as a proximate consequence of the negligence of the defendant in this: On said date defendant was a municipal corporation, wherein was located a public street or highway known as Sherman street *** frequently used both night and day by travelers in automobiles, *** and plaintiff avers that on the evening of December 25, 1922, said Sherman street between Eighth and Tenth Avenues East was obstructed and blocked, in that there was a large rope stretched across said Sherman street from the north side to the south side thereof; said rope being fastened or tied to trees or posts on opposite sides of Sherman street, and the rope being some 3 or 4 feet above the surface of the street." It is alleged that on the date stated, "in the nighttime," plaintiff was driving an automobile over and along Sherman street and, "not knowing that a rope had been stretched across said street *** drove said automobile into the rope, and was injured." It is averred that "defendant negligently or carelessly caused said rope to be stretched across Sherman street, thereby obstructing and blocking said street, and, as a proximate consequence of defendant's negligence and carelessness in so causing said rope to be stretched across said Sherman street, plaintiff was injured, in that he ran into said rope," etc.

Count 5 thus ascribes the negligence:

"Plaintiff avers that the agents, servants, or employees of the defendant, acting within the line or scope of their employment, placed a rope across Sherman street so as to block the free passage of said street, and negligently failed to place a light or other warning upon said rope so as to keep the traveling public from running into or against said rope, knowing full well that said street was frequently traveled in the nighttime by the public, and plaintiff avers that, as a proximate consequence of the negligence of the officers, agents, servants or employees of the said defendant in failing to put lights on said rope, which they had stretched across Sherman street, while acting within the line or scope of their employment, said plaintiff was injured by running an automobile he was driving into said rope," etc.

Count 7 alleges that plaintiff's injuries "were proximately caused by the defendant's neglect, carelessness, or failure to remedy a defect in Sherman street after the same had been called to the attention of the mayor and city council of the city of Albany, or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge thereof on the part of said mayor and city council, said defect consisting of the fact that a rope was stretched across Sherman street from the north side to the south side thereof, and allowed to remain there night and day in such manner or way as to not give warning or notice to travelers in the nighttime of its existence, thereby making said street in condition not reasonably safe for travelers."

The demurrer to the complaint contains these grounds: The same shows on its face that a rope stretched across a street is not a defect in the highway; same shows the alleged defect had existed for such unreasonable length of time as to raise a presumption of knowledge, etc., and fails to show the length of time it existed; same fails to show defendant had any knowledge or notice of said defect.

G.O. Chenault, of Albany, for appellant.

Almon & Almon and Eyster & Eyster, all of Albany, for appellee.

SOMERVILLE J.

Counts 1, 5, and 7 of the complaint, upon which the case went to the jury, sufficiently state a cause of action, and are not subject to any of the grounds of demurrer interposed.

When an intentional obstruction of a public street is charged as the act of the municipality itself, the question of notice to the municipality of the existence of such an obstruction, as an element of liability to one injured thereby, is wholly immaterial. 28 Cyc. p. 1387, § 3.

The material facts relating to the obstruction complained of are as follows:

In order to protect a sick man from the annoyance of passing vehicles, the street superintendent of the defendant municipality, acting under an order from the mayor, stretched a rope across Sherman street, a a much-traveled city highway, so as to prevent the passage of vehicles along the street and by the sick man's residence located thereon. The rope was so placed on Christmas morning, 1922. It was a three-fourth inch grass rope, fastened firmly to trees and posts at either side of the street, so as to hang 4 or 5 feet above the surface. The street was about 48 feet wide, a little more or a little less; and, as a warning to approaching vehicles, two lighted lanterns were hung on the rope at about 5 o'clock p.m.; one being placed on each side of the street about 12 feet from the curb, leaving about 25 feet in the middle without any warning light. The rope was located about 150 feet from the nearest street light, which was at the intersection of Sherman street and Tenth avenue.

The...