Smith v. Alabama Water Service Co.
| Decision Date | 13 October 1932 |
| Docket Number | 7 Div. 141. |
| Citation | 225 Ala. 510,143 So. 893 |
| Parties | SMITH v. ALABAMA WATER SERVICE CO. |
| Court | Alabama Supreme Court |
Rehearing Denied Nov. 3, 1932.
Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.
Action for damages by Philip E. Smith against the Alabama Water Service Company. From a judgment of nonsuit, plaintiff appeals.
Affirmed.
Rutherford Lapsley and Young & Longshore, all of Anniston, for appellant.
Knox Acker, Sterne & Liles, of Anniston, for appellee.
Suit for personal injuries alleged to have been suffered by appellant, as the result of falling into an open meter box placed by appellee between the curb and the sidewalk at No 2124 Monroe avenue, in the city of Anniston.
The appeal presents for review the propriety of the court's ruling in sustaining defendant's (appellee's) demurrer to counts 7, 8, 9, 10, 11, and 12 of the amended complaint. Upon the sustaining of the demurrer to these counts, the plaintiff took a nonsuit, and prosecutes this appeal.
It appears, from the pleading, that appellee was engaged in business as a public service corporation, furnishing water to the public, in the city of Anniston. As a part of its water system, the defendant maintained water meters located between the curb of the streets and the sidewalks, in front of premises that were served with water. These meters were incased in a metal box, of circular form, about fifteen to sixteen inches in diameter, and about the same number of inches in depth, and so placed that the top of the opening was on a level with the surface of the ground. It is also averred that the metal boxes containing the meters were provided with a metal covering to protect the meters, and also to protect the public from falling into them.
It is averred that the covers were not provided with locking devices, that they were light, and easily removable. It is further averred that the metal covers on numerous such boxes, in use by the defendant in the city of Anniston, were being frequently removed and left open, and in such condition "were an open menace and danger to persons using the public sidewalk," and that numerous other persons beside the plaintiff had, within a few months prior to plaintiff's injury, sustained injury by falling or stepping into such meter boxes. All of which facts, it is averred in the seventh count of the complaint, the defendant, its agents or servants, acting in the line and scope of their duty, well knew.
In the eighth count, it is averred that "all of which facts the defendant, its agents or servants well knew, or by the exercise of reasonable diligence should have known."
The ninth count contains the allegation that such meter boxes were being frequently removed and left open, and in such condition were an open menace to persons using the sidewalks, and "constituted a public nuisance," and that the metal box into which plaintiff fell was in such condition at the time of plaintiff's injury.
Count 10, after averring the same general conditions as in counts 7 and 8, averred that such meter boxes were being frequently removed and left open, and alleges that the negligence of the defendant consisted in maintaining the said meter box in the condition it was in when the plaintiff fell into the same.
Count 11 is practically the same as count 10, with the addition of the following averment: "All of which facts, defendant, its agents or servants acting in the line and scope of their duty, well knew."
Count 12 is the same as count 10, with the following added averment: "All of which facts, defendant, its agents or servants acting in the line and scope of their duty, well knew, or by the exercise of reasonable diligence should have known."
It is not averred in any count of the complaint that the defendant acted, in installing the meters, without municipal authorization, nor is it made to appear that the defendant, or any of its agents, left the meter box, into which plaintiff fell, uncovered, or knew that this box was uncovered at the time the plaintiff received his injuries, or that it had been removed for such a length of time as would impute to defendant negligence in failing to discover and repair same. It is not averred that the meter boxes were not such as were in general use by other well-regulated companies engaged in similar business.
Construing the pleading most strongly against the pleader, it may be fairly inferred from the several counts of the complaint that the covering to the box in question was removed by some person other than an agent or servant of the defendant, and that neither the defendant, nor any of its agents or servants, knew that the covering had been removed from the box in question. The plaintiff grounds his cause of action upon the fact that the covering to the box was a light metal one, easily removable, was not provided with sufficient locking device, and that in other places in the city these covers had been from time to time removed, and other persons had fallen into the uncovered boxes and had suffered injuries, and that defendant or its agents or servants knew of those facts. It would appear, as for anything averred to the contrary, that the boxes were properly placed, of proper material, and, so long as the covers were not interfered with, were not sources of danger to the public. That the danger would and did result only from the wanton or unlawful acts of third persons in removing the cover.
We have not been cited to any authority, either of our own court or elsewhere, which would require that locking devices should be provided for meter boxes installed along the streets to protect the boxes from the illegal, or wanton, acts of third persons. Nor have we been cited to any authority which holds that public service corporations, engaged in business similar to the business conducted by the defendant, should anticipate illegal or wanton depredations of third persons.
Our attention has been called by appellant to the case of Bridgeport Water Co. v. Goodwin, 132 Ala. 533, 31 So. 490, as supporting his contention that the several counts of the complaint sufficiently state a cause of action. It is unfortunate that the complaint is not set out in the report of that case. We have referred to the original transcript and find that count 1 averred that the box into which plaintiff fell had been...
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