City of Birmingham v. Pool

• Decision Date: 12 May 1910
• Citation: 169 Ala. 177,52 So. 937
• Parties: MAYOR, ETC., OF CITY OF BIRMINGHAM v. POOL.
• Court: Alabama Supreme Court

52 So. 937

169 Ala. 177

MAYOR, ETC., OF CITY OF BIRMINGHAM v. POOL.

Supreme Court of Alabama

May 12, 1910

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

Action by H. C. Pool against the City of Birmingham. From a judgment for plaintiff, defendant appeals. Affirmed.

The first count alleges that the ditch or excavation which proximately caused the damage was made in said street by and with the knowledge of the defendant, and that defendant had knowledge of the danger and defective condition of said street at the time of plaintiff's said injury, and defendant negligently failed to have said street put in reasonably safe condition. The second count alleges that the defendant had knowledge of the defective and dangerous condition of said street, or by the exercise of reasonable diligence might have had such knowledge, and negligently failed to repair the same, or place any warnings, signals etc. The fourth count alleges that the defendant permitted the excavation to be made, and that the same had not been properly filled in and made solid, and knew of the dangerous condition, or with exercise of reasonable care could have known, and failed to place warning signals of any kind. Count 3 alleges that the defendant permitted said excavation to be made, and with notice of the same allowed the same to remain in an unsafe and dangerous condition. The demurrers raise the question of a failure to sufficiently allege notice of the defects, or of facts from which such notice would be inferred.

The charges refused are: (1) The general affirmative charge. (2) Verdict for the defendant under the first count, if the jury believe the evidence. (3) Same as to the second count. (4) Same as to the third count. (5) Same as to the fourth count. (6) Same as to the fifth count. (7) Same as to the sixth count. (8) "I charge you, gentlemen of the jury, that unless you believe from the evidence in this case that the defect complained of had existed long enough, in the absence of actual notice, for the defendant in the reasonable exercise of its duties to have discovered and remedied said defects, there can be no recovery in this cause." (9) "I charge you, gentlemen of the jury, that there is no evidence in this cause showing that the defendant had actual notice of the defective condition of the street described in the complaint prior to the time of plaintiff's accident."

R. H Thach, for appellant.

L. J Haley, Jr., for appellee.

ANDERSON J.

The counts of the complaint either aver that the defendant affirmatively caused the ditch to be made, or negligently permitted it to remain open. If it caused it to be made, then it had notice of its existence. On the other hand, whether it caused it to be made or not, but negligently permitted it to be there, the averment that it did so negligently permit it to be in the street is the equivalent of averring notice of the defect. Lord v. City of Mobile, 113 Ala. 360, 21 So. 366; Ensley v. Smith, 51 South 343; City of...