City of Albany v. Black

• Decision Date: 09 December 1926
• Docket Number: 8 Div. 878
• Citation: 112 So. 433,216 Ala. 4
• Parties: CITY OF ALBANY v. BLACK.
• Court: Alabama Supreme Court

112 So. 433

216 Ala. 4

CITY OF ALBANY v. BLACK.

8 Div. 878

Supreme Court of Alabama

December 9, 1926

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Action by Martha Black against the City of Albany. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Somerville Gardner, and Miller, JJ., dissenting in part.

G.O Chenault, of Albany, for appellant.

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

BOULDIN J.

Under the present statute a bill of exceptions will not be stricken nor disregarded because not "presented or signed" within the time required by law, except on motion of a party to the record or his attorney. If such motion is not made at or before submission, the objection is waived. Code, § 6434.

This is a companion suit to City of Albany v. Black, 214 Ala. 359, 108 So. 49--an action for personal injuries resulting from the collision of an automobile with a rope stretched across a public street under direction of the mayor and superintendent of streets. The former action was by Hosie Black, the driver of the car, the present action by Martha Black, his wife, who was riding with others on the back seat of the car.

The present complaint contains three counts. Count 1 is the same as count 7, and count 3 the same as count 5, in City of Albany v. Black, supra, except in one respect, viz., the present counts fail to aver in terms that the accident occurred "in the nighttime." Count 1 alleges the injury was received on "the evening of December 25 1922." The same averment is by reference carried into counts 2 and 3. All the counts lay the injury to the negligent failure to place or maintain guards, lights, or other warning to travelers in the nighttime. Without dispute in the evidence, the accident occurred in the early part of the night.

Taken as a whole, these counts reasonably import that "evening" is used to designate the period between sunset, or the evening meal, and ordinary bedtime, one of its accepted meanings in common parlance (Webster's New International Dictionary, "Evening"), and that the injury occurred at night during this period. It was not subject to demurrer for uncertainty as to the time of the injury. Moreover, the demurrer does not specially point out the alleged defect insisted upon in the argument, The other grounds of the demurrers to counts 1 and 3 were ruled against the appellant in the Hosie Black Case, and we need not further consider them.

Count 2 "avers that the defendant negligently allowed a defect to be and remain in Sherman street at the place above alleged, said defect consisting of the fact that a rope was stretched across Sherman street from the north side to the south side thereof, without being properly guarded or without maintaining notices or warnings thereon, so as to be observed by a traveler in the nighttime, thereby making said street unsafe for a traveler in an automobile"; that her injuries resulted from the automobile in which she was riding being driven by Hosie Black into such rope. By reference to count 1, plaintiff's injury is alleged to have been received "as a proximate consequence of the negligence of the defendant, or its agents, servants, or employees, acting within the line or scope of their employment."

That the defendant "negligently allowed a defect to be and remain" in the street imports that the defect had existed sufficiently long to have been discovered and remedied by the exercise of due care. City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; Lord v. City of Mobile, 113 Ala. 360, 21 So. 366; City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48. The demurrer to count 2 was overruled without error.

No particular form of verification is prescribed for the "sworn statement" to be filed with the city clerk under Code, § 2031 (1275). The recital that plaintiff "makes oath that the following facts are true," then setting out the matters required by law, subscribed by plaintiff, and attested, "sworn to, and subscribed before me this 24th day of January, 1923, Jas. H. Martin, Notary Public," is sufficiently verified.

We do not construe the complaint, or either count thereof, as counting upon a defect in the street due to unlawful closing of the street, but the negligent manner of doing it--stretching a rope, without proper warnings of a barrier of that kind, in the nighttime. Neither the authority or charter power of the municipality to create a quiet zone by closing the street near the home of a sick person as a temporary emergency, nor the existence of such emergency at the time, is in issue. Hence, evidence of such sickness in fact, the extent of it, and the annoyance of passing vehicles, was immaterial. In no event could plaintiff recover except upon evidence of want of red light signals, sufficient in number and properly placed, or other adequate warning of the presence of the obstruction. That a red light properly placed at night upon a public street is a danger signal is of common knowledge. No proof of such fact was required. If not common knowledge, it would not be a sufficient warning to the public.

The Hosie Black Case, 214 Ala. 359, 108 So. 49, was reversed for refusal of the affirmative charge to defendant on count 5, the same as count 3 in the case at bar. The pertinent provisions of this count are set out in the former opinion. Reversal was for entire want of evidence tending to prove the averment that in placing the rope across the street the mayor and superintendent of streets were acting within the line and scope of their employment. A further study impresses us this view is incorrect.

As well said in the former opinion:

"The street superintendent was, as to the duty of removing obstructions from the streets, and protecting travelers from the danger of collision with such an obstruction as this rope, the alter ego of the city; and his knowledge of the presence of the obstruction was, in law, the knowledge of the city."

And again:

"Placing obstructions on the streets was in violation of his duty to remove them."

The duty to remove obstructions as an element of danger to the public is but a part of the wider duty to maintain the streets in a safe condition. It has...