City of Montgomery v. Moon
| Decision Date | 23 November 1922 |
| Docket Number | 3 Div. 575. |
| Citation | 208 Ala. 472,94 So. 337 |
| Parties | CITY OF MONTGOMERY v. MOON. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
Action for damages by Pauline Moon, by her next friend, against the City of Montgomery and James C. Davis, as Agent, etc. From a judgment for plaintiff, defendant City of Montgomery appeals. Affirmed.
Ludlow Elmore, of Montgomery, for appellant.
Hill Hill, Whiting & Thomas, of Montgomery, for appellee.
Pauline Moon, a girl 8 years of age, fell into the railroad cut which crosses a highway in the city of Montgomery known as Highland avenue, and brought this suit by her next friend against the city of Montgomery and the Director General of Railroads, who was at the time maintaining and operating the properties of the Central of Georgia Railway Company, to recover for the damages sustained as the consequence of such fall. This is a companion case to that of City of Montgomery v Moon, 205 Ala. 590, 88 So. 751, and bears close analogy to the more recent case of City of Montgomery v Ferguson, 93 So. 4.
There was a bridge over the cut at the point where the injury occurred, which bridge was maintained by the city, and the evidence for the plaintiff tended to show that at the time of the injury the railroad cut where the street and sidewalk abutted was unguarded, except by the fragments of an old fence erected some years before by the city of Montgomery and that plaintiff fell into this cut from a portion of the sidewalk which was unguarded.
Only a few questions are here presented for consideration, and we treat them in the order of their presentation. The complaint substantially conforms to that held sufficient in the authorities above cited, and this question needs no further treatment.
The record discloses that the jury viewed the scene of the accident. At the conclusion of the evidence the court gave the general affirmative charge in favor of the Director General of Railroads, and, as held by this court in City of Montgomery v. Ferguson, supra, we are not in position to review the propriety of this action of the court. Appellant [city of Montgomery] can take nothing, therefore, from the assignment of error presenting this question.
The defendant Director General was permitted to introduce an ordinance of the town of Highland Park, to the introduction of which the city of Montgomery interposed objection; the plaintiff offering none. This ordinance could only be relevant as affecting the defendant the Director General, and as the affirmative charge was given in favor of the Director General, which action is not here to be reviewed, it is quite clear that the admission of such ordinance in no manner affects the cause upon this appeal by the city.
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