Lord v. City of Mobile

CourtAlabama Supreme Court
Writing for the CourtHARALSON, J.
Citation21 So. 366,113 Ala. 360
PartiesLORD v. CITY OF MOBILE.
Decision Date02 February 1897

21 So. 366

113 Ala. 360

LORD
v.
CITY OF MOBILE.

Supreme Court of Alabama

February 2, 1897


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. [21 So. 367]

Gregory L. & H. T. Smith, for appellant.

Peter J. Hamilton, for appellee.

HARALSON, J.

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...

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40 practice notes
  • City of Birmingham v. Young, 6 Div. 250.
    • United States
    • Supreme Court of Alabama
    • May 10, 1945
    ...exercise of reasonable care, would have been known to the city authorities. City of Birmingham v. Smith, supra; Lord v. City of Mobile, 113 Ala. 360, 21 So. 366; City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48; City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; City of Albany v. Blac......
  • Biddle v. Riley, 332
    • United States
    • Supreme Court of Arkansas
    • April 26, 1915
    ...Such testimony is not admissible in a civil case until the reputation of the witness has been attacked. 91 S.W. 691; 113 Al, a. 360, 21 So. 366; 113 N.W. 1118; 57 Ind. 378; 33 S.W. 249; 129 S.W. 863; 15 Am. Neg. Rep. 372; 7 Conn. 116; 110 Cal. 414; 20 S.E. 763; 23 Pa.St. 424; 84 Id. 446; 68......
  • City of Montgomery v. Quinn, 3 Div. 416.
    • United States
    • Supreme Court of Alabama
    • October 19, 1944
    ...had existed sufficiently long to have been discovered and remedied by defendant by the exercise of due care. Lord v. City of Mobile, 113 Ala. 360, 21 So. 366; 15 Alabama Digest, Municipal Corporations, k816(4), p. 214. * * * "A tree was between the south side of this block and the curb situ......
  • Walker County v. Davis, 6 Div. 510.
    • United States
    • Supreme Court of Alabama
    • March 27, 1930
    ...52 So. 937; Ensley v. Smith, 165 Ala. 387, 51 So. 343; City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48; Lord v. Mobile, 113 Ala. 361, 21 So. 366. The count is therefore not subject to demurrer on this ground, though we should agree with appellant's argument as to the insufficiency of the ......
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40 cases
  • City of Birmingham v. Young, 6 Div. 250.
    • United States
    • Supreme Court of Alabama
    • May 10, 1945
    ...exercise of reasonable care, would have been known to the city authorities. City of Birmingham v. Smith, supra; Lord v. City of Mobile, 113 Ala. 360, 21 So. 366; City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48; City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; City of Albany v. Blac......
  • Biddle v. Riley, 332
    • United States
    • Supreme Court of Arkansas
    • April 26, 1915
    ...Such testimony is not admissible in a civil case until the reputation of the witness has been attacked. 91 S.W. 691; 113 Al, a. 360, 21 So. 366; 113 N.W. 1118; 57 Ind. 378; 33 S.W. 249; 129 S.W. 863; 15 Am. Neg. Rep. 372; 7 Conn. 116; 110 Cal. 414; 20 S.E. 763; 23 Pa.St. 424; 84 Id. 446; 68......
  • City of Montgomery v. Quinn, 3 Div. 416.
    • United States
    • Supreme Court of Alabama
    • October 19, 1944
    ...had existed sufficiently long to have been discovered and remedied by defendant by the exercise of due care. Lord v. City of Mobile, 113 Ala. 360, 21 So. 366; 15 Alabama Digest, Municipal Corporations, k816(4), p. 214. * * * "A tree was between the south side of this block and the curb situ......
  • Walker County v. Davis, 6 Div. 510.
    • United States
    • Supreme Court of Alabama
    • March 27, 1930
    ...52 So. 937; Ensley v. Smith, 165 Ala. 387, 51 So. 343; City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48; Lord v. Mobile, 113 Ala. 361, 21 So. 366. The count is therefore not subject to demurrer on this ground, though we should agree with appellant's argument as to the insufficiency of the ......
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