Davis v. Common Council of Alexander City

Decision Date28 February 1903
Citation137 Ala. 206,33 So. 863
PartiesDAVIS v. COMMON COUNCIL OF ALEXANDER CITY.
CourtAlabama Supreme Court

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...

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16 cases
  • Morgan Hill Paving Co. v. Fonville
    • United States
    • Alabama Supreme Court
    • 6 December 1928
    ... ... Well, just how big ... the rock was, it was just a common size rock. I picked it up ... laying down at the edge of ... Montgomery City v. Ross, 195 Ala. 362, 70 So. 634; ... Lee County v ... overruled. Davis v. Sorrell, 213 Ala. 191, 104 So ... 397; City of ... Starr, 112 Ala. 98, 20 So. 424; Davis v. Alexander ... City, 137 Ala. 206, 33 So. 863, where the observation ... ...
  • Breland v. Ford
    • United States
    • Alabama Supreme Court
    • 3 May 1996
    ...So. 747 (1916) (comments to the jury by counsel concerning the race of the parties held highly improper); Davis v. Common Council of Alexander City, 137 Ala. 206, 33 So. 863 (1903) (argument of counsel ruled not in evidence and not legally competent or admissible as evidence). In fact, the ......
  • Southern Ry. Co. v. Lefan
    • United States
    • Alabama Supreme Court
    • 30 June 1915
    ...was hurt, is inadmissible in the absence of all proof that such condition remained unchanged after the date of the injury." Davis v. Alexander City, 137 Ala. 206 (headnotes 2 and 3), 33 So. The correct rule is also well stated in a quotation in the case of Foley v. Pioneer Co., 144 Ala. 183......
  • St. Louis & S. F. R. Co. v. Hart
    • United States
    • Oklahoma Supreme Court
    • 13 October 1914
    ...74 S.W. 112; Crandall v. Dubuque, 136 Iowa 663, 112 N.W. 555; Berrenberg v. Boston, 137 Mass. 231, 50 Am. Rep. 296; Davis v. Alexander City, 137 Ala. 206, 33 So. 863; Chicago v. Vesey, 105 Ill. App. 191; Annapolis Gas & Elec. Light Co. v. Fredericks, 109 Md. 595, 72 A. 534; Goddard v. Enzle......
  • Get Started for Free

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