City of Anniston v. Ivey

• Citation: 151 Ala. 392,44 So. 48
• Parties: CITY OF ANNISTON v. IVEY.
• Decision Date: 09 May 1907
• Court: Supreme Court of Alabama

44 So. 48

151 Ala. 392

CITY OF ANNISTON v. IVEY.

Supreme Court of Alabama

May 9, 1907

Appeal from Circuit Court, Calhoun County; John Pelham, Judge.

Action by W. R. Ivey, administrator, against the city of Anniston. From a judgment for plaintiff, defendant appeals. Affirmed.

W. R Ivey, as administrator, sued the city of Anniston to recover damages for the death of his intestate. There were five counts in the complaint. The gravamen of the first count is that the depression or ditch in the street had been negligently left there for a sufficient length of time for the defendant to have known it. The second charges that it negligently allowed a dangerous depression to be and remain in its streets for a long time, to wit, three days; but it does not allege that the city authorities had either actual or constructive notice of the defect. The third count avers that the city cut or dug a ditch, and negligently allowed the same to remain open, and negligently failed to place any guard around said ditch, or to put any warnings or signals there. The fourth count avers that the ditch was dug three feet wide and four feet deep across the street, and a sewer was laid and the ditch filled, but that the dirt settled down, so that the ditch was then one foot or more in depth and soft and miry, and was negligently left in that condition for a long time; but it is not alleged that the defendant had any notice, actual or constructive, that the dirt had settled down, or that it had become soft and miry. The gravamen of the fifth count is that the city, through its agents defectively filled said ditch, and negligently failed to repair the street after the excavation had been made to the sewer pipe. A number of grounds of demurrer were filed to these counts, but the second, sixth, eighth, and ninth only are insisted upon. The second and sixth present the question of the failure to allege or show that the city had actual or constructive notice of any ditch or depression in the street. The eighth and ninth raise the question as to whether or not this action obtained in favor of plaintiff as administrator against the municipal corporations. The defendant then interposed the general issue and four special pleas of contributory negligence. Demurrers were interposed and sustained to all of the special pleas, except plea 2; but the only insistence here is as to the sustaining of demurrers to plea 3, which was as follows: "The plaintiff's intestate was himself guilty of negligence which proximately contributed to his own injury, in this: That at the time of said accident he was sitting on the seat of a high furniture wagon, and driving along said street at a rapid rate of speed, and not having any support for his back or for his side in the wagon, and having no sufficient brace or protection in front, upon running over a slight depression in the street, he was thrown from said wagon. And defendant avers that, had he been driving at a moderate rate of speed considering the seat upon which he was sitting, and considering that he had no sufficient support for his body to keep him from falling out, he would not have been thrown from said wagon by the wheels thereof running into said ditch or depression." The demurrers raise the question that there are no facts alleged in said plea to constitute contributory negligence; it is not negligence to drive at a high rate of speed in a wagon such as is described in said plea, and the rate of speed at which plaintiff's intestate was driving is not stated; that it was the duty of defendant to keep said streets in condition reasonably safe for the passage of vehicles of the characters set forth in the plea. There was judgment for the plaintiff in the sum of $1,500, and defendant appeals.

Blackwell & Agee, for appellant.

Tate & Walker and Knox, Acker & Blackmon, for appellee.

McCLELLAN J.

The appellee's intestate died, it is...