Lewman v. Andrews

• Decision Date: 05 February 1901
• Citation: 129 Ala. 170,29 So. 692
• Parties: LEWMAN ET AL. v. ANDREWS.
• Court: Alabama Supreme Court

29 So. 692

129 Ala. 170

LEWMAN ET AL. v. ANDREWS.

Supreme Court of Alabama

February 5, 1901

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action by Leana Andrews, administratrix of John Richardson, against M. T. Lewman and others.

There were six counts in the complaint. The averments of the respective counts, the pleas interposed and the facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charges: (1) "If the jury believe from the evidence that John Richardson was passing along a road which the public was accustomed to and did use, as a footway, and without any negligence on his part, acting as a reasonable and prudent man, fell into a ditch left open and unprotected by the defendants, they must find for plaintiff." (2) "The court charges the jury that it is not necessary that plaintiff should prove that the road or path was a public road along which he was walking and where he is alleged to have fallen, in order to make out a prima facie case." The defendants separately excepted to the giving of these charges, and duly excepted to the court's refusal to give the following charge requested by them: (6) "I charge you gentlemen of the jury that there is no evidence that at the point where Richardson fell into a ditch or drain there was a public road."

There were verdict and judgment for the plaintiff, assessing the damages at $1,500. The defendants appeal, and assign as error the giving of the charges requested by the plaintiff and the refusal to give the charge requested by the defendants. Reversed.

B. B Boone, for appellants.

John E Mitchell, for appellee.

HARALSON J.

1. There were six counts in the complaint, all of which, except the third and sixth, allege that defendants dug a ditch "across a public road or highway, or road along which pedestrians were accustomed to pass," into which the decedent fell and was so injured that he died.

The third averred, that they "dug a ditch across a public road or highway, along which pedestrians were accustomed to pass"; and the sixth, that they "dug a ditch across a certain road which [was] in general use as a wagon and foot way." Each count except the second contained substantially, in different forms of expression, the same averment of duty on the part of defendants, namely, to fill in or bridge over, or otherwise cover said ditch, so that the road would be left substantially as safe to foot passengers as it was before said excavation, from which neglect of duty, the plaintiff's intestate was injured, etc. The second, without averring as the others did, the duty to bridge or otherwise guard the road, averred that defendants "negligently failed to restore said road to as substantially safe condition as it was in before said ditch was dug, until after the injury herein complained of occurred," etc.

The pleas were the general issue, and a special plea of contributory negligence on the part of plaintiff's intestate.

2. There was no conflict in the evidence that the ditch was cut by the defendants; but it was in conflict as to whether or not the road was a public road or highway, but not that the road was one which was used by the public as a footway, along which pedestrians were accustomed to pass, and that defendants knew that fact.

The evidence showed also, without conflict, that the road along which pedestrians were accustomed to pass, and in which plaintiff's intestate fell, did not cross said ditch,-that for the plaintiff tending to show, that the ditch was dug up or close to the path on the west side at the point where deceased fell in, and then skipped it, and did not pass through it, but left the pathway untouched, but unguarded; that for the defendants tending to show, that the ditch was not dug to or near the pathway on the west side, but was dug within from 10 to 20 feet of it on the east side as variously estimated by witnesses. The plaintiff's evidence tended to show that this road had been used for 30 years or more by the general public by persons in vehicles and on foot; that recently, on account of a wash, that part of the road where the ditch was, could not be traveled by people in vehicles; that they turned around a short distance and came into the road again further on, but not far off; but that it continued, as before, to be used by the public generally as a footpath, along which pedestrians were accustomed to pass.

Stein a witness for defendants, testified, that he was the owner of the land through which the road and path passed; that he had never given permission for the road to be opened or used, but had suffered it to be used by the public generally as a wagon and foot way,...