Hovater v. Franklin County
Decision Date | 12 April 1928 |
Docket Number | 8 Div. 4 |
Parties | HOVATER v. FRANKLIN COUNTY. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Franklin County; Charles P. Almon, Judge.
Action for damages by W.C. Hovater, as administrator of the estate of Pearl Hovater, deceased, against Franklin County. Plaintiff takes a nonsuit and appeals from adverse ruling on pleading in sustaining a demurrer to the complaint. Affirmed.
J. Foy Guin, of Russellville, for appellant.
Williams & Chenault, of Russellville, for appellee.
The action is for wrongful act, omission, or negligence causing death, brought under the Homicide Act, Code, § 5696. Demurrer to the complaint was sustained. Plaintiff took a nonsuit and appeals.
The complaint alleges that a bridge was erected across Bear creek on a public highway in 1908 under contract with the county that no bond or guaranty was given by the builder, an independent contractor, and proceeds:
The complaint brings the bridge in question within the terms of Code, § 6457. Does the complaint make a case of statutory liability as against the demurrers assigned?
The duty to maintain a public bridge in safe condition for the passage of vehicles may include the duty to maintain guard rails alongside the bridge. The height, width, length, manner of approach, and conditions of travel would enter into the question of reasonable safety in the particular case. As a rule, where there is need for a bridge, such safeguards should be provided. A small bridge extending in width well out beyond the traveled portion of the highway might not be deemed unsafe without them.
The allegation that the bridge in question was defective and unsafe for want of a railing was sufficient in that regard. Barbour Co. v. Horn, 48 Ala. 649, par. 5, page 656, op. page 663; 9 C.J. p. 477.
One ground of demurrer goes to the failure of the complaint to negative contributory negligence. This is defensive matter to be set up by special plea. This is too well settled to need comment.
Other grounds proceed on the idea that the complaint affirmatively shows contributory negligence; that the absence of a railing could not be the proximate cause of a car running off the bridge without actual negligence of the driver. Such is not the law. Ordinary care in driving over a bridge under conditions apparent at the time is the measure of the driver's duty. If the condition of the bridge is such that in the exercise of such care an accident could not happen, then the bridge could not be said to be unsafe. Such reasoning is equivalent to a denial of any duty to maintain guard rails.
The averment that decedent died "as a proximate result of said injury, and of said accident, and of said defective condition of said bridge," is sufficient to show causal connection. While perhaps not the best form of expression, it is apparent the phrases used conjunctively are intended to show a chain of direct causation. But this complaint merely alleges, "the railing along the side of said bridge was down" on and prior to the date of the injury. How long it was down, how it came to be down, that it was down because of failure to properly repair, that the responsible authorities knew it was down, or by the exercise of due diligence would have known and remedied such defect, does not appear.
The rule is now well settled that where the complaint states facts from which the duty of care arises, a general averment of negligence is sufficient. But this complaint...
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