Davis v. Common Council of Alexander City

• Decision Date: 28 February 1903
• Citation: 137 Ala. 206,33 So. 863
• Parties: DAVIS v. COMMON COUNCIL OF ALEXANDER CITY.
• Court: Alabama Supreme Court

33 So. 863

137 Ala. 206

DAVIS v. COMMON COUNCIL OF ALEXANDER CITY.

Supreme Court of Alabama

February 28, 1903

Appeal from Circuit Court, Tallapoosa County; N. D. Denson, Judge.

Action by W. O. Davis against the common council of Alexander City to recover for injuries alleged to have been sustained by plaintiff by reason of the defective condition of a street in the town of Alexander City.Judgment for defendant, and plaintiff appeals.Affirmed.

It was averred in the complaint that while the plaintiff was driving in a buggy along one of the streets in Alexander City, in the nighttime, the buggy ran into a ditch or gully that was left open along or across said street, and threw the plaintiff out, causing the injuries complained of, and that the defendant knew that said ditch or gully was in or across said street, or should have known of the existence of said ditch and gully by the exercise of due diligence in attending to and keeping in repair the streets of said town, and that the defendant negligently allowed said ditch or gully to remain open in and across said street.The defendant pleaded the general issue, and by special plea set up the contributory negligence on the part of the plaintiff, in that at the time complained of the plaintiff was driving at night along said street in a reckless manner and at a high rate of speed, and that his negligence in this regard proximately contributed to the injuries complained of.The plaintiff introduced evidence showing that the injuries complained of were inflicted on March 26, 1900.There was also evidence introduced on the part of the plaintiff further tending to show that while he was driving along one of the streets of the defendant town at an ordinary rate of speed, of from four to six miles an hour the front wheels of his vehicle ran into a ditch which was in or along said street, and by reason of this defect the plaintiff was thrown out of the vehicle and injured.The evidence on the part of the defendant tended to show that there was no ditch or gully in the street at the place the plaintiff claimed to have been injured.Dr. Coley was introduced as a witness, and testified that he was the mayor of the town of Alexander City; that he traveled over the streets on which the plaintiff was alleged to have been injured, every day; and that there never had been a ditch or gully there.The plaintiff then asked this witness the following question: "Do you remember about Dr. C. H Maxwell's being thrown from his buggy several days after the plaintiff had the accident, at the same place?"The defendant objected to this question, the court sustained the objection, and the plaintiff duly excepted.R. W. Thompson was introduced as a witness for the plaintiff, and was asked by the plaintiff if he was in Alexander City about the 1st of April, 1900; and, upon answering that he was, the plaintiff then asked him what condition was the street in at the place the plaintiff's testimony tended to show he was injured.The witness replied that it was in good condition, except that in one place there was a hole in it.The defendant objected to this question and answer, and moved the court to exclude the answer from the jury.The court...