City of Huntsville v. Phillips

Decision Date07 November 1914
Docket Number737
Citation67 So. 664,191 Ala. 524
PartiesCITY OF HUNTSVILLE v. PHILLIPS.
CourtAlabama Supreme Court

Rehearing Denied Dec. 17, 1914

Appeal from Circuit Court, Madison County; D.W. Speake, Judge.

Action by Daniel J. Phillips, pro ami, against the City of Huntsville and others. From a judgment for plaintiff, the City of Huntsville appeals. Affirmed.

The first count of the complaint sets out that on a certain night, while plaintiff was riding in a hack within the corporate limits of said city, the hack collided with a large pile of crushed stone or rock which had been placed in the street by Felix Lanier in front of the residence of W.M Yarbrough on the east side of the street in the course of construction by Lanier of a sidewalk for said Yarbrough which pile of rock defendant had carelessly and negligently allowed to remain in said street for an unreasonable length of time; that the collision caused a vehicle or hack in which plaintiff was riding to be overturned, precipitating plaintiff out of same the street and under the vehicle, and as a proximate consequence thereof he suffered certain injuries which are set out. The other counts of complaint are substantially the same, and at the end of complaint it is alleged that the claim upon which this action was based was filed with the clerk of the city of Huntsville by plaintiff through his next friend duly sworn to as required by section 1275. Defendant seeks by plea to set up the order of the court entering a judgment of mistrial as to the two defendants here and a judgment in favor of defendant Yarbrough, setting up that, if defendant was liable in any way, he was jointly liable with William Yarbrough, and that before this trial plaintiff, through his attorneys, had consented to release the said William Yarbrough, and that all liability of these defendants had been thereby discharged.

David A. Grayson, of Huntsville, for appellant.

Betts &amp Betts, of Huntsville, for appellee.

DE GRAFFENRIED, J.

The plaintiff's mother came into the city of Huntsville on a train. She was a widow, and brought with her her four children, and hired a hack to take her and them to a point in the city. The hack ran into a pile of rock which had been placed in the street, and the plaintiff thereby received painful and serious injuries. The injury occurred at night, and the pile of rock was neither guarded nor had a light near it. This suit was brought by the plaintiff, a minor under 10 years of age, for damages, against the city of Huntsville, one Yarbrough, and one Lanier. The record shows that the case has been twice tried. On the first trial the jury returned a verdict in favor of the defendant Yarbrough, and failed to agree on a verdict as to the defendants Lanier and the city of Huntsville. On the second trial a verdict was rendered against the defendants Lanier and the city of Huntsville, and from the judgment following the verdict the city of Huntsville appeals.

1. The complaint in this case was not subject to the grounds of demurrer interposed to it. City of Bessemer v. Whaley, 65 So. 542; City of Bessemer v. Whaley, 66 So. 145.

2. In the case of Cedar Creek Store Co. v. Steadham, 65 So. 984, this court laid down, after full consideration, the rules governing the subject of contributory negligence on the part of infants. Under the rules laid down in that case, the pleas of contributory negligence filed by the defendant in this case were not sufficient. The complaint shows that the plaintiff is an infant, and the pleas do not show that degree of discretion on the part of the plaintiff which is required by the rule laid in Cedar Creek Store Co. v. Steadham, supra.

3. The defendant undertook by plea to impeach the record of the first trial. This could not be done by plea. 23 Cyc. 1055; Alexander v. Nelson, 42 Ala. 462.

4. The claim which was presented to the city of Huntsville for damages sustained by the plaintiff was presented and sworn to by the mother of the plaintiff as his next friend. The plaintiff was a minor of tender years, without a guardian, and this was sufficient. Strode v. Clark, 12 Ala. 621.

5. The city of Huntsville, under an ordinance, either directly or indirectly--it matters not which--was having certain paving done at the point where the injury occurred. This paving necessarily required the presence of rock at the point where the work was being done, and, of course, cast the duty upon the city of Huntsville of protecting the members of the traveling public at that point from dangers which unguarded material might entail upon them. The fact that the city was having the work done, or requiring it to be done, at that point, gave notice to the city of its duties in that regard. The city was therefore undoubtedly guilty of negligence in permitting rock, which had been piled in the street at the point named, to be left there at night, without appropriate signals of danger. City of Bessemer v. Whaley, supra; Mayor & Ald., Birmingham, v. Tayloe, 105 Ala. 176, 16 So. 576.

6. There was filed in the cause a plea in the following language:

"The proximate cause of the injury was the reckless driving of the driver of plaintiff's vehicle."

If that plea was intended as a mere traverse of the complaint, that could have been shown under the general issue. The trial court cannot be put in error for sustaining the demurrer to this plea, if it be regarded as a plea of contributory negligence; for it is manifestly bad as such.

7. The mere fact that the hack did not...

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15 cases
  • City of Birmingham v. Young
    • United States
    • Alabama Supreme Court
    • May 10, 1945
    ... ... Ferguson, 207 Ala. 430, 93 So ... 4; City of Birmingham v. Simmons, 222 Ala. 111, 130 ... So. 896, 74 A.L.R. 766; City of Huntsville v ... Phillips, 191 Ala. 524, 67 So. 664; City of ... Birmingham v. Blood, 228 Ala. 218, 153 So. 430. And ... where the municipal authorities ... ...
  • Morgan Hill Paving Co. v. Fonville
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    • December 6, 1928
    ... ... 245, 102 ... So. 115. And it follows that the decisions cited ( ... Montgomery City v. Ross, 195 Ala. 362, 70 So. 634; ... Lee County v. Yarbrough, 85 Ala. 590, 5 So. 341; ... rown v. Shelby County, 204 Ala. 252, 85 So. 416; ... Phillips v. Tuscaloosa County, 212 Ala. 357, 102 So ... 720; 25 A.L.R. 438; 29 C.J. 371, 677, § 44) do ... was free of obstructions ( City of Huntsville v ... Phillips, 191 Ala. 524, 67 So. 664; Mayor of ... Birmingham v. Tayloe, 105 Ala. 176, 16 ... ...
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    • June 6, 1929
    ... ... friend on behalf of the minor has been held to be a ... sufficient compliance with a similar statute. Huntsville ... v. Phillips, 191 Ala. 524, 67 So. 664 ... In a ... New York case, Seliger v. New York (Sup.) 88 N.Y.S ... 1003, a claim was filed ... ...
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