City of Ensley v. Smith

• Decision Date: 13 January 1910
• Citation: 165 Ala. 387,51 So. 343
• Parties: MAYOR, ETC., OF CITY OF ENSLEY v. SMITH.
• Court: Alabama Supreme Court

51 So. 343

165 Ala. 387

MAYOR, ETC., OF CITY OF ENSLEY v. SMITH.

Supreme Court of Alabama

January 13, 1910

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by James Smith against the Mayor and City Council of Ensley. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint is as follows: "Plaintiff claims of the defendant the sum of $1,000 as damages, for that on, to wit the 9th day of March, 1905, the defendant was a municipal corporation in Jefferson county, Alabama; that it was the duty of said municipal corporation to keep the streets and avenues of said city of Ensley in safe and suitable condition for the use of the public. Plaintiff avers that said defendant, unmindful of its duty in the premises, negligently allowed or permitted one of the streets of said city to be and become in a dangerous and unsafe condition in this: That the defendant negligently allowed the certain hole or excavation about four feet wide and three feet deep to be in one of its said streets or public thoroughfares. Plaintiff avers that, while driving along said street or business thoroughfare in a wagon drawn by a horse, he, together with said horse and wagon, fell into said excavation or hole, then and there and thereby injuring said horse so that he died and breaking and injuring his said wagon, and then and there bruising plaintiff in and about his head, body, and limbs." Then follows an allegation as to the damages suffered as a proximate consequence of the injury. The second count is similar to the first, except that it was alleged that the municipality negligently allowed the said excavation to be in said street without any safeguard to prevent the public, who used said streets and thoroughfare, from falling therein. The demurrers sufficiently appear from the opinion.

Fred G Moore, for appellant.

B. M Allen and Robert N. Bell, for appellee.

ANDERSON J.

It is true that in actions of this character against a municipality it is incumbent upon the plaintiff to aver and prove express notice of the defect, or facts from which it might be inferred that the corporate authorities were chargeable with constructive notice thereof. The complaint, however, in the case at bar, and each count thereof, avers that the defendant negligently allowed the street to become in a dangerous condition, and was a sufficient averment of implied or constructive notice. Lord v. City of Mobile, 113...