City of Birmingham v. Crane

• Decision Date: 21 November 1911
• Citation: 175 Ala. 90,56 So. 723
• Parties: CITY OF BIRMINGHAM v. CRANE.
• Court: Alabama Supreme Court

56 So. 723

175 Ala. 90

CITY OF BIRMINGHAM v. CRANE.

Supreme Court of Alabama

November 21, 1911

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Hugh C. Crane, as administrator of the estate of Lloyd Kerr, deceased, against the City of Birmingham. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint is as follows: Count 1, as amended "Plaintiff, who sues in his capacity as the administrator of Lloyd Kerr, deceased, claims of defendant mayor and aldermen of Birmingham, a municipal corporation under the laws of Alabama, the sum of $20,000 damages, in this: That on or prior to the 29th day of September, 1902 defendant had committed to its care and keeping the public streets and sidewalks of the city of Birmingham, and was in duty bound to exercise reasonable care to keep said streets and sidewalks in a reasonably safe condition for persons passing along and over same. That on, to wit, the date aforesaid, plaintiff's intestate, who was an infant under seven years of age, was on one of the public streets of said city, to wit, on Twenty-Fifth Street North, near where said street intersects with Third alley, and, while being on said street, was borne or carried by water thereon into one of the sewers of said city, and drowned. That plaintiff's said intestate's death was proximately caused by the negligence of said defendant in allowing said street to be out of repair, in this: That water was allowed to accumulate on and run over and along said street, or a part of the same in a large quantity, viz., such quantity and with such force as to propel or convey plaintiff's said intestate along and over said street, into said sewer, causing his death by drowning, etc. And plaintiff avers that defendant had notice that said street was out of repair as above stated." Then follows an allegation of the presentation of the claim to the mayor and board of aldermen and disallowance of same. 2, As amended: Same as 1, down to and including the words "reasonably safe condition," where they first appear in said count, and adds: "That defendant neglecting this duty in its behalf, on, to wit, the date aforesaid, negligently allowed large quantities of water to accumulate on Twenty-Fifth street, near where said street intersects with Third alley, and to flow with great force along said street, and into the mouth of one of the sewers of the said city, near the intersection of said street with said alley, and negligently permitted the mouth of said sewer into which said water flowed to be and remain open, so that a child could be carried or borne by the water on said street into said sewer. And plaintiff avers that while his intestate, a child under seven years of age, was in said water on said street on the date aforesaid, he was carried with great force by said water into the mouth of said sewer and drowned." Then follows the same averment of notice of the defect, and presentation and disallowance of claim, as in count 1. The demurrers raise the proposition that the counts did not aver sufficient knowledge of the defects on the part of the defendant, or notice to the defendant of the defects; that, if there was negligence, it was in the exercise of its governmental functions, for which the defendant was not liable; that, if there was negligence, it was in the adoption of a plan of drainage and sewerage, for which the defendant was not liable. It alleges negligence of the defendant in maintaining a street or sewer in a certain condition, but does not aver or show that said street or sewer was maintained in any other condition than that contemplated in the original plan of defendant for the improvement of said street and construction of said sewer. It shows on its face that the defendant maintained the street and sewer complained of in the same condition as originally contemplated in the plans of defendant.

The amendments to the counts consisted in adding the words "to exercise reasonable care" just after the words "was in duty bound," where they occur in said count. To the amended counts the following demurrers were interposed, in addition to those above set out: "(1) The counts do not aver or show that the street which is alleged to have been out of repair at the time of the accident to plaintiff's intestate had ever been established and improved in such manner as to make the defendant liable for failure to keep the same in good condition. (2) Said counts are inconsistent and repugnant, in that negligence is alleged therein as the conclusion of the pleader, yet the facts stated therein show that the mayor and aldermen of Birmingham were not guilty of negligence. (3) It is not negligence for defendants to allow water to accumulate on or run over and along said street, or a part thereof, in the quantity stated in said count. (4) It is not averred or shown that the water accumulated or run over and along said street, or a part thereof, as set out in said count, was not run over or along a drain or sewer provided for such purpose."

Defendant filed the plea of the general issue and the following special pleas: (2) "To each count defendant says that the accident and death of plaintiff's intestate would not have happened, but for the proximate contributory negligence of the father of plaintiff's intestate, who had custody and control of him at said time, which said proximate contributory negligence consisted in this: That the said father of plaintiff's intestate negligently permitted plaintiff to wade in a drain in said street while water was flowing down the same into the mouth of an open sewer, and plaintiff's intestate was thereby washed into said open sewer, and drowned." (3) Same as 2, except that the contributory negligence is alleged to be that of the mother instead of the father. (4) Same as 2, except the contributory negligence is alleged to be that of a person unknown to the defendant, who had custody and control of plaintiff's intestate at the time. (5) "To each count of the complaint says the plaintiff's intestate, at the time of being washed into said sewer in said street as set out in the complaint, was wading in water in a drain in said street which flowed into said sewer; that said sewer was constructed and left open, and said drain was constructed to accumulate the waters and convey them into said sewer, as set out in said complaint, according to a plan adopted by the mayor and aldermen of Birmingham in its governmental capacity for the drainage of the city of storm water; that said drain and sewer were constructed strictly in accordance with said plan and that there was no negligence on the part of the defendant, its officers, agents, or servants, in leaving open the mouth of said sewer as aforesaid, or in the construction of said drain as aforesaid, but that the same was constructed in a skillful manner, and in accordance with said plan, and was maintained in accordance with said plan." (6) Same as 5, except it is alleged that the sewer was constructed by the city in the exercise of its governmental capacity. (...