Vance v. Morgan

Decision Date07 December 1916
Docket Number7 Div. 816
Citation198 Ala. 149,73 So. 406
PartiesVANCE v. MORGAN et al.
CourtAlabama Supreme Court

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by J.R. Vance against J.F. Morgan and others, partners doing business under the firm name of Morgan & Co. Judgment for defendants, and plaintiff appeals. Affirmed.

Victor Vance and Motley & Motley, all of Gadsden, for appellant.

O.R Hood and Charles W. Moffett, both of Gadsden, for appellees.

SOMERVILLE J.

It is well settled that persons using a public street have a right to presume, and to act on the presumption, that the way is reasonably safe for ordinary travel, whether by day or night. 13 R.C.L. 472; Birmingham v. Tayloe, 105 Ala. 170 16 So. 576; Montgomery v. Reese, 146 Ala. 410, 40 So. 760. But "generally speaking the rule does not apply if the traveler knows of the defect or obstruction in the highway, or has reason to believe that it exists." 13 R.C.L. 475. In such a case, although he may not be bound to refrain from using the highway, yet, if he does so, he must exercise ordinary care to avoid injury. Birmingham v Tayloe, 105 Ala. 170, 16 So. 576; City of Montgomery v. Ross, 70 So. 634; 13 R.C.L. 475.

The gravamen of the complaint is that defendants made an excavation at a street crossing and allowed it to remain open at night without lights or other safeguards such as are usual and proper.

Defendant's fifth plea, after averring that the excavation was made under municipal authority for street improvements, further avers that:

"Plaintiff knew that defendants had thus been and were then engaged in making said excavation, and knew of the danger of stepping or falling into said excavation, yet he approached said portion of said street in the nighttime and stepped or fell into said excavation, without first exercising reasonable diligence to ascertain whether said street or excavation had been excavated at the point into which he stepped or fell, or the exact location of said excavation, and as a proximate consequence," etc.

If, as the plea avers, plaintiff knew of this particular excavation and of the danger of stepping into it in passing by, it was clearly his duty to exercise reasonable diligence to avoid it; and this he could do only by observing its exact location before he attempted to pass.

Conceding however, that the plea does not invoke with technical precision the complete rule of duty which the law casts...

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24 cases
  • Walker County v. Davis
    • United States
    • Alabama Supreme Court
    • March 27, 1930
    ...reasonably safe for travel, and are not required to watch out for defects. Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; Vance v. Morgan, 198 Ala. 149, 73 So. 406; Montgomery v. Ross, 195 Ala. 362, 70 So. 634. is therefore no duty to observe care in respect to defects until there is notic......
  • Clinton Mining Co. v. Bradford
    • United States
    • Alabama Supreme Court
    • May 10, 1917
    ...the objection to the replication as answer to plea 10. It may be that the court's ruling was justified on this ground. However, in Vance v. Morgan, 73 So. 406, Mr. Justice said: "Conceding *** that the plea does not invoke with technical precision the complete rule of duty which the law cas......
  • Hickman v. Hannas
    • United States
    • Alabama Supreme Court
    • October 13, 1955
    ...allegation was proved and considered. Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann.Cas.1917D, 929; Vance v. Morgan, 198 Ala. 149, 73 So. 406; Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74, 78; Southern R. Co. v. Harris, 202 Ala. 263, 80 So. 101, 104; Birming......
  • Turner v. Blanton, 4 Div. 207
    • United States
    • Alabama Supreme Court
    • March 11, 1965
    ...229; Southern Railway Co. v. Dickson, 211 Ala. 481, 100 So. 665; Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74; Vance v. Morgan, 198 Ala. 149, 73 So. 406; Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417. Also, when the parties adopt a theory for the trial, and it is......
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