Lord v. City of Mobile
Decision Date | 02 February 1897 |
Parties | LORD v. CITY OF MOBILE. |
Court | Alabama Supreme Court |
Appeal from circuit court, Mobile county; William S. Anderson Judge.
This action was brought by the appellant, Edward P. Lord, against the appellee, the city of Mobile, to recover damages for injuries, alleged to have been received by reason of the defendant negligently allowing a dangerous hole to remain in one of its sidewalks at a designated place, by reason of which the defendant stepped into said hole, and broke his leg and sustained other injuries. The pleadings and the rulings thereon are sufficiently stated in the opinion, as is also the evidence tending to sustain the plaintiff's case. The court, against the separate exceptions and objections of the plaintiff, allowed the defendant to evoke on the cross-examination of the witnesses, testimony tending to show that the plaintiff was a white man and was married to a negress, and that he was made to leave Texas, where he was teaching school, by reason of his immorality. These rulings are called into question by the assignments of error on the record, numbered 20, 21, 22, 42, 43, 44, 45, 46, 47, 48 and 49. The testimony of Mr. Rich, which was allowed, against the objection and exception of the plaintiff is sufficiently stated in the opinion. The testimony of Mr. Fry, who was chairman of the finance committee of the general council of the city of Mobile, was to substantially the same effect as the testimony of Mr. Rich. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the many rulings of the trial court to which exceptions were reserved. Reversed.
Gregory L. & H. T. Smith, for appellant.
Peter J. Hamilton, for appellee.
1. The complaint as originally filed contained the averment, that the defendant, a municipal corporation, was charged with the duty of keeping its sidewalks in a safe and proper condition that it negligently allowed a dangerous hole to remain in one of its sidewalks on the corner of Scott and St. Francis streets in the city of Mobile, along which the public were accustomed to pass, etc. The averment that the defendant allowed a dangerous hole to remain in one of its sidewalks as averred, imports that the defect had existed sufficiently long to have been discovered and remedied by the exercise of due care on the part of the defendant. The allegation of the defect, and of notice of its existence, was sufficient. The question of negligence, where the facts are disputed, or different minds might draw different conclusions, is always one of fact for the determination of the jury. City Council v. Wright, 72 Ala. 411; Railroad Co. v. Hawkins, 92 Ala. 241, 244, 9 So. 271; Albrittin v. Mayor, etc., of Huntsville, 60 Ala. 486.
2. By the sustaining of a demurrer interposed to the complaint as originally filed, the plaintiff was forced to amend his complaint by averring that the defendant had notice, or would have had knowledge of the existence of the defect, if it had exercised reasonable care in the premises. Demurrer was again interposed to the complaint which was properly overruled. The complaint as amended was no more in legal effect and sufficiency, than the original, which implied all that was averred after amendment. Pleas were then filed, which amounted to nothing more than the general issue, and pleas of contributory negligence. The plaintiff, however, filed a replication to the eighth plea,-which plea averred a want of notice or knowledge on defendant's part of the alleged defect,-setting up that the failure of the defendant to know that said defective condition of the sidewalk existed, was due to its failure to exercise reasonable diligence to learn of its defective and dangerous condition in order to keep the same in a proper and safe condition and repair, as it was its duty to do. A demurrer to this replication was properly overruled. It really set up nothing that was not available on the plea of the general issue to the complaint.
3. The defendant then filed pleas 9, 10, and 11. The first of these,-the ninth,-set up a lack of power and means to repair the sidewalks; the tenth, that the city had exhausted its means for care of streets, by contract for the care of the roadway and was not able to repair, and the eleventh, that defendant was not bound to keep them in repair. The ninth was a mere conclusion of the pleader. It fails to aver that the defendant was deprived of the power and means to repair without fault on its part. The charter of the city, makes it the duty of the general council "to establish and keep open all sidewalks, drains and sewers necessary to the convenience or health of the citizens, and to see that the same are kept in proper repair"; and for municipal purposes, they are authorized to levy a tax of six-tenths of 1 per cent. on the value of all property, or subjects of taxation as assessed by the state during the previous year. Acts 1886-87, pp. 236, 240, §§ 20, 26. The courts take judicial knowledge of this charter, and where a special duty is enjoined on the city by its charter, to keep its sidewalks in repair, it is answerable in damages to any one who suffers injury from the negligent performance of this duty. City of Selma v. Perkins, 68 Ala. 148; City Council v. Wright, supra. In the case of Mayor, etc., of City of Birmingham v. Lewis, 92 Ala. 352, 9 So. 243, it was well said, that "a municipal corporation disregards one of its plainest duties when it permits an unguarded pit *** to remain in a city thoroughfare, where of necessity it is a constant peril to travelers," and, "We have not discovered any case in which a municipal corporation has been held relieved of responsibility for damages resulting from a defect in the street of a city because of the insufficiency of the means at the disposal of the authorities for purposes of street improvement or repairs," holding that such a principle can be invoked, if at all, only when the corporation has not the power conferred, to raise the means for such purposes. 24 Am. & Eng. Enc. Law, 87, 88, and authorities cited. Referring to the powers bestowed by charter to raise revenues in Lewis' Case, the one just quoted from, it was added: ...
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