Niblett v. Mayor & City Council of Nashville

• Decision Date: 31 December 1874
• Citation: 59 Tenn. 684
• Parties: W. S. Niblett v. The Mayor and City Council of Nashville.
• Court: Tennessee Supreme Court

59 Tenn. 684

W. S. Niblett

v.The Mayor and City Council of Nashville.

Supreme Court of Tennessee.

December Term, 1874.

FROM DAVIDSON.

From the Law Court of Nashville, September Term, 1872. Jo. C. GUILD, J.

QUARLES & THOMA for Plaintiff.

W. K. MCALISTER, City Attorney, and JOHN LELLYETT for Defendant.

FREEMAN, J., delivered the opinion of the Court.

This action was brought to recover damages for an injury sustained by falling into an excavation adjoining the McKendree Church in the City of Nashville.

There appears to be an alley running from Church street along the side of the property of the church situated on this alley and extending to the edge of it.

The church had made an excavation along the side of the wall of its building, some six or seven feet deep, for convenient entrance into the basement.

Immediately on the edge of the street, a curbing of stone twelve or fourteen inches high had been erected.

The plaintiff, in endeavoring to cross the alley and approach the house, the night being dark, fell over this curbing into the excavation, and thus received the injury complained of.

The original declaration filed in the case averred, in substance, that the area or pitfall wrongfully permitted by the corporation was “in and on a public alley and common highway” of the city.

Issues were made up on this declaration which had been filed at the January term, 1871.

An amended count was filed at the May term, 1872, which averred that the pitfall or excavation from which the injury was received was adjacent and contiguous to the alley and immediately on the side of it.

His Honor, the Circuit Judge, at the trial charged the jury that if the proof showed that the excavation was, not “in and on” the alley, but adjacent to it, then the plaintiff could not recover on the first count of the declaration.

The main question is, whether this charge is correct; for the statute of limitations having been interposed in the case, his Honor held that as to the second count plaintiff was barred, because it had been filed more than twelve months after the right of action accrued; so that necessarily the plaintiff was defeated under his Honor's ruling,--the proof showing the excavation to be along the side of the alley, and not literally in or on it.

We think, in the first place, that, under our decisions, as well as the decisions of our sister States, a municipal corporation is liable for a failure to keep its streets and alleys in repair, and clear of such obstructions as may endanger the free and proper use of them for the purposes to which they are opened or dedicated, that is the passage of persons, vehicles, etc., along them. See Davenport v. Ruckman, 37, N. Y., 568.

A different doctrine has been maintained by courts of high respectability, but we think that the sounder rule is as we have stated it.

But to the main question: Was his Honor correct in holding that the language of the declaration was to be construed as averring that the excavation was literally “in and on the alley,” so that the plaintiff's action must fail if it was shown to be adjacent to, and immediately along, the side of the alley?

We think not.

This construction is too narrow, and sticks in the bark.

The language is, under the liberality of our requirements, to receive a fair and natural construction.

While taken in the strictest sense, the construction given would be correct, yet, taken in the...