City of Montgomery v. Ferguson

• Citation: 207 Ala. 430,93 So. 4
• Decision Date: 19 January 1922
• Docket Number: 3 Div. 554.
• Parties: CITY OF MONTGOMERY v. FERGUSON.
• Court: Supreme Court of Alabama

93 So. 4

207 Ala. 430

CITY OF MONTGOMERY v. FERGUSON.

3 Div. 554.

Supreme Court of Alabama

January 19, 1922

Rehearing Denied May 4, 1922.

Appeal from Circuit Court, Montgomery County; R.I. Jones, Judge.

Action by Thomas E. Ferguson, pro ami, against the City of Montgomery and the receiver of the Montgomery Light &amp Traction Company for damages for injuries received by falling into a cut. Judgment for plaintiff, as against defendant City of Montgomery, and it appeals. Affirmed.

Persons using public streets may assume that they are reasonably safe for travel.

The following is the complaint:

Count 2: "Plaintiff claims of the defendants ten thousand ($10,000.00) dollars as damages, for that on, to wit, the 14th day of January, 1921, the plaintiff was walking along Bell street at a place about fifty (50) feet west of Dickerson street, just at or off the southeast corner of Bell Street bridge, at a place immediately adjoining the track or trestle used by Ray Rushton, receiver of the Montgomery Light & Traction Company, and within eighteen inches of the rails of said track, which street and place where plaintiff was walking was and is a public street or highway in the city of Montgomery, Alabama. And then and there, while so walking the plaintiff was suddenly precipitated or fell down a steep embankment into a deep cut or ravine, which passes underneath said bridge, and thereby and as a proximate result thereof the plaintiff was rendered unconscious for a considerable time, his nervous system was greatly shocked and injured, his body and face were severely cut, lacerated, bruised, and injured, he was internally injured, he was permanently injured, he was made sick, sore, and lame, his left arm was broken in two places, his right arm, wrist, or hand was broken, sprained, and permanently injured, and he suffered and continues to suffer great mental anguish and physical pain, for all of which he claims damages as aforesaid. And plaintiff avers that said injuries were proximately caused by the defendants' neglect, carelessness, or failure to remedy a defect in said street or sidewalk, after the same had been called to the attention of the board of commissioners of the city of Montgomery, Alabama, or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge thereof on the part of said board of commissioners; said defect consisting of the fact that said cut or ravine was in or across, or in close and dangerous proximity to, said street or highway at said place in an unguarded condition, and thereby said street or highway was not in a reasonably safe condition for travelers. And plaintiff avers that he, within six months after said injuries, filed with the clerk of the city of Montgomery Alabama, a sworn statement, stating substantially the manner in which the said injuries were received, and the day and time and place where the accident occurred and the damages claimed."

Count 3: "Plaintiff claims of the defendants ten thousand ($10,000.00) dollars as damages, for that on, to wit, the 14th day of January, 1921, the plaintiff was walking along Bell street at a place about fifty (50) feet west of Dickerson street, just at or off the southeast corner of Bell Street bridge, at a place immediately adjoining this track and trestle used by Ray Rushton, receiver of the Montgomery Light & Traction Company, and within eighteen inches of one of the rails of said track, which said street and place where plaintiff was walking was and is a public street or highway in the city of Montgomery, Alabama. And then and there, while so walking, the plaintiff was suddenly precipitated or fell down a steep embankment into a deep cut or ravine which passes underneath said bridge, and thereby and as a proximate result a consequence thereof the plaintiff was rendered unconscious for a considerable time, his nervous system was greatly shocked and injured, his body and face were severely cut, bruised, and injured, he was internally injured, he was permanently injured, he was made sick, sore, and lame, his left arm was broken in two places, his right arm, wrist, or hand was broken, sprained, and permanently injured, and he suffered and continues to suffer great mental anguish and physical pain, for all of which he claims damages as aforesaid. And plaintiff avers that the defendants negligently allowed a defect to be and remain in said street at said point; said defect consisting of the fact that said cut or ravine was in or across, or in close and dangerous proximity to, said street or highway at said place in an unguarded condition, and thereby said street or highway at said point was not in a reasonably safe condition for travel. And plaintiff avers that he, within six months after said injuries, filed with the clerk of the city of Montgomery, Alabama, a sworn statement, stating substantially the manner in which the said injuries were received and the day and time and place where the said accident occurred, and the damages claimed."

The following charges were given at the instance of the plaintiff:

(1) "It was the duty of the city of Montgomery to keep its public streets in a reasonably safe condition for the travel by night as well as by day, and this duty extended the entire width of the street."

(2) "Municipal corporations are due the traveler upon their public thoroughfare the duty of keeping those thoroughfares to the full width thereof in a reasonably safe condition for travel by night as well as by day."

(3) Practically the same as 2.

(4) "The plaintiff had a right to presume, in the absence of knowledge to the contrary, that the city had performed its duties, and that the street was reasonably free from defects."

The following charges were refused to the defendant:

(F) "Should the jury find from the evidence that plaintiff's injuries were caused by a fall from the trestle, or from that portion of the street maintained by the street railway company, then they cannot return a verdict against the city of Montgomery alone."

(E) "If the jury find from the evidence that plaintiff's injuries were received while he was walking or standing on that portion of the bridge or street maintained by the street railway, then th...