Montgomery St. Ry. Co. v. Smith

• Decision Date: 21 December 1905
• Citation: 146 Ala. 316,39 So. 757
• Parties: MONTGOMERY ST. RY. CO. v. SMITH.
• Court: Alabama Supreme Court

39 So. 757

146 Ala. 316

MONTGOMERY ST. RY. CO. v. SMITH.

Supreme Court of Alabama

December 21, 1905

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

"To be officially reported."

Action by Mary J. Smith against the Montgomery Street Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

This was a suit for damages sustained by appellee on account of the alleged negligence of the appellant in leaving a hole or ditch open and unguarded on one of the public streets of Montgomery, into which appellee, while crossing the street fell and sustained injuries complained of. The original complaint contained six counts. The first count alleges that appellant, through and by its servants and agents, excavated its track or dug a ditch or hole in the street at the intersection of Washington and Bainbridge streets in the city of Montgomery; that said streets were public highways in the city of Montgomery; and that, while walking along or across said public highway at a point where Washington crosses Bainbridge street, she fell into said excavation or ditch and was greatly bruised and injured; that her injuries were suffered in consequence of the negligence of defendant, or its servants or agents, in leaving said ditch or hole without barricades or without such other means as are usual and proper to guard the public at night from falling into said excavation while passing along said street. Demurrers were sustained to the second count, and it went out. The third count contained practically the same allegations as to the nature and cause of the injury as the first count. Demurrers were sustained to the fourth count, and it went out. Demurrers were sustained to the fifth count, and it went out. The sixth count made the same allegations as to the character of injury received and the manner in which it was received and averred that the negligence of the defendant or its servant or agent consisted in leaving said ditch or excavation open without a light or other things to give warning thereof.

The complaint was afterwards amended by adding the seventh eighth, ninth, tenth, eleventh, twelfth, thirteenth fourteenth, and fifteenth counts. The court gave the affirmative charge for the defendant as to the seventh ninth, and twelfth counts. The eighth count alleged the duty on appellant, as the operator of the street railway over the streets of Montgomery and at the point mentioned, at the crossing of Washington and Bainbridge streets, to keep the part of the street occupied by its track in a reasonably safe state of repair for the safe passage of travelers over it, and alleged a negligent disregard of this duty by permitting an excavation or ditch to remain in the same unguarded, without lights or other things to give warning thereof. The tenth count alleges the duty of appellant to keep the part of the streets over which its said track ran in safe repair for the passage of travelers over it, and a disregard of that duty by excavating the same and leaving the excavation and negligently failing to put up signals or lights upon said excavation. Count 11 is practically the same as the tenth count. The thirteenth count alleges the duty on defendant to keep the street occupied by its tracks in reasonable repair for the safe passage of travelers over it, and that a contractor, who was constructing or repairing said track for defendant, made an excavation and negligently left it open at night, without proper lights or safeguards. The fourteenth count sets forth an ordinance of the city of Montgomery which requires any street railway company, operating any line of street railway within the corporate limits of the city of Montgomery or within the police jurisdiction thereof, to make said track conform to the grade of the streets where laid, and to keep in good repair all that part of the street occupied by said rails and tracks and for two feet on either side of said track; averring that the defendant operated a street railway and had a track extending from Bainbridge street to Washington street, in the city of Montgomery, and alleging the duty of appellant of keeping said streets so occupied by its tracks and the two feet on either side thereof in reasonable repair, and alleging that said tracks and the street two feet on either side thereof were out of repair by reason of a deep hole, ditch, or gully, which had been negligently left open by defendant without proper guards, lights, or covering, and that appellee fell in and was injured. Count 15 sets up an ordinance granting the right, privilege, power, and authority to appellant to operate and maintain an additional track on South Bainbridge street, in the city of Montgomery, and setting up the further fact that this right and power was subject to all the conditions, requirements, limitations, and regulations under which said street railway is now operating and subject to any ordinance of the city of Montgomery now in existence or which may hereafter be adopted regulating the operation of street railways in said city, and averring that at the time of the approval of said ordinance there was another ordinance of the city of Montgomery in full force and effect, setting out the ordinance set out in the fourteenth count and alleging the same breach of duty and negligence as alleged in count 14. There was demurrer to all of these counts, specifying many and various grounds of demurrer. The demurrers were sustained as to counts 2, 4, and 5 of the original complaint, and overruled as to the others.

It was shown that the witness Ford was city engineer. He was asked by the plaintiff "Who got the permit to do this work for the city?" He answered: "Mr. Semmes and Mr. Scott applied for a permit to fix the street. They did not state that the permit was for the Montgomery Street Railway. Mr. Semmes was its manager at that time. I do not know what position Mr. Scott occupied."

The court in its oral charge to the jury said: "Ordinarily an independent contractor, in the prosecution of the work secured by the contract between him and his employer, being guilty of negligence, the employer is not responsible for it. But there is a very important modification of that proposition, which in my judgment, as a matter of law, takes it entirely out of this case; that is to say, that, if the work to be done is one which in its nature is intrinsically or necessarily accompanied with danger, then the employer cannot put himself behind his independent contractor. In a case of that sort, the employer and the independent contractor are both equally responsible, and the person injured under these circumstances has a right to sue one or the other, just as he pleases, or to sue both of them if he pleases, and, upon establishing his case to the reasonable satisfaction of the jury, would be entitled to the verdict." Further charging the jury orally, the court said: "It was the duty of this defendant, and whether that duty arose out of some rule at common law, or whether out of some statutory enactment of the city council of Montgomery, it makes no difference, the duty was the same; and it was the duty of this defendant, if it was operating and using that railroad track there in a public highway, to keep so much of the highway as lay under and between its track in safe condition of repair." Further charging the jury, the court said: "I had something to say to you about this question of independent contractor, and I stated certain propositions, having in mind the idea that certain charges would be requested; but I find they have not been. I want to modify all that I have said to you in regard to that question in this way: I state to you now that if the work required to be done in the repair and rebuilding of this road was intrinsically or necessarily accompanied by danger to pedestrians, if left unguarded or unlighted or without signals at night, if you shall be satisfied from the evidence that that is the case, then this defendant cannot escape liability on the ground that its agent in the rebuilding or repairing of that railroad was an independent contractor. Now, whether or not this excavation required by this work was of that sort or not, under the conditions which I have named, is a question of fact which in the present state of this case I submit to you for your determination."

To defendant charges were refused as follows:

Charge 1: "The court charges the jury that if the plaintiff, on approaching the place where she sustained her injury, if there was anything, such as débris, lumber, timber, piles of dirt, etc., such as was reasonably calculated to give warning that the earth had been excavated at that point it was then her duty to be on the lookout to detect and avoid any such excavation, and if she failed to do this, and thereby contributed to her injury she cannot recover."

Charge 2 was the general affirmative charge. Charge 3, affirmative charge as to fourteenth count. Charge 4, affirmative charge as to sixth count. Charge 5 was the affirmative charge as to the eighth count. Charge 7 was the affirmative charge as to the tenth count. Charge 8 was the affirmative charge as to the eleventh count. Charge 10, affirmative charge as to the thirteenth count. Charge 11 was the affirmative charge as to the fifteenth count. Charge 14, general affirmative charge. Charge 15, affirmative charge as to third count. Charge 17, affirmative charge as to the first count.

Charge 6: "There is no evidence in this case that plaintiff suffered any permanent injury on account of the fall testified about."

Charge 13: "The court charges the jury that, if they are reasonably satisfied from the evidence that the work of constructing the street railway track at the intersection of Bainbridge and Washington streets was done under...