Crowley v. City of West End

• Decision Date: 07 February 1907
• Citation: 43 So. 359,149 Ala. 613
• Parties: CROWLEY v. CITY OF WEST END ET AL.
• Court: Alabama Supreme Court

43 So. 359

149 Ala. 613

CROWLEY v. CITY OF WEST END ET AL.

Supreme Court of Alabama

February 7, 1907

Rehearing Denied March 2, 1907.

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

Action by E. Lee Crowley against the city of West End and others. Judgment for defendants, and plaintiff appeals. Affirmed.

The original complaint contained two counts, to which demurrers were interposed and sustained, whereupon he filed an amended complaint containing counts 3 and 4. It will suffice for this case to set out one of these counts, as they are all very similar: "Count 3. The plaintiff, E. Lee Crowley, claims of the defendant the sum of $1,500 damages, for this: That the defendants heretofore, to wit, on and prior to the 16th day of January, 1905, unlawfully and negligently created caused, maintained, permitted, or suffered a public nuisance in Jefferson county, Alabama, at the town or city of West End, and in or on and about what is known as Tuscaloosa avenue, at or near the junction of what is known and called as Walnut street with said avenue, in that the defendant negligently caused, suffered, created, or permitted a large pond of water to collect and stand or remain in, along, and across Tuscaloosa avenue, in that certain natural swag or low place of ground on or in and about said avenue at said place which said water plaintiff avers from freezing caused an accumulation of ice to be in or upon said pond of water on said date, so that, while the plaintiff was exercising due care in traveling along said Tuscaloosa avenue, on his way from the city of Birmingham to his home in the town of Brighton, in said county and state, in a vehicle or delivery wagon drawn by a horse delivering goods, wares, and merchandise to his customers living along said way, the horse, in passing along said avenue and wading through said pond, came in contact with the ice, or the ice and water, so that he fell in the ice and water in such a manner as that the plaintiff, in order to get the horse up and save him, was compelled to get out into the ice and water and unhitch the horse so he could get up, and while he was doing so the horse, in his efforts to arise, shoved or knocked the plaintiff down into the ice and water, and fell on or against him, so that he was covered with water, or ice and water, and that when he (plaintiff) got up onto his feet he was compelled to remain standing in said pond to rehitch the horse to the vehicle before he could get out of the pond with the vehicle and horse." It is further averred that he was injured and suffered great inconvenience and other damages, had to shiver with cold, his left knee and right hip were greatly strained and made sore, that he had to borrow clothes from a negro because the weather was freezing; that he was greatly humiliated by having to go into the presence of other people in that plight; that he took cold and had to stay indoors several days; and that his business suffered accordingly. It is also alleged that the avenue is a public street or roadway for public travel, and the main...