Lord v. City of Mobile , 113 Ala. 360 ( 1896 )

HARALSON, J.

1. Tlie 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 street in the city of Mobile, along which the public were accustomed to pass &c. 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; L. & N. R. R. Co. v. Hawkins, 92 Ala. 241, 244; Albrittin v. The Mayor &c., 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 8th 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 condición 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 9th, — set up a lack of power and means to repair the sidewalks ; the 10th, that the city had exhausted its means for care of streets, by contract for the care of the road-way and was not able to repair ; and the 11th, that defendant was not bound to keep them in repair.

The 9th 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 side-walks, 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 one per cent on the value of all property, or subjects of taxation as assessed by the State during the' previous year.-Acts of 1886-87, pp. 236, 250, §§ 20, 26. The courts take judicial knowledge of tliis charter, and where a special duty is enjoined on the city by its charter, to keep its sidewalks in repair, it is answerable in damages to any one who suffers injury from the negligent performance of this duty.-City of Selma v. Perkins, 68 Ala. 148; City Council v. Wright, supra. In the case of the Mayor v. Lewis, 92 Ala. 352, it was well said, that “a municipal corporation disregards one of its plainest duties when it permits an unguarded pit * * * to remain in a city thoroughfare, where of necessity it is a constant peril to travellers/’ and, “we have not discovered any case in which a municipal corporation lias been held relieved of responsibility for damages resulting from a defect in the street of a city because of the insufficiency of the means at the disposal of the authorities for purposes of street improvement or repairs holding that such a principle can be invoked, if at all, only when the corporation has not the power conferred to raise the means for such purposes.-24 Am. & Eng. Encyc. of Law, 87, 88, and authorities cited.

Referring to the powers bestowed by charter to raise revenues in Lewis’ Case, (the one just quoted from), it was added : ‘ ‘The power conferred by those acts constitute resources for street improvements and repairs. The offer of proof, not having gone to the extent of showing that the city authorities had exhausted the means at their command for the performance of the duty imposed, the evidence [of a lack of means] was immaterial, and for that reason was properly excluded.” The 10th and 11th pleas for the same reasons were vicious, and demurrers to them and the 9th should not have been overruled.

4. All the questions the court allowed against the objection of plaintiff, as to his color, the color of his wife and her mother, should have been excluded. The matters inquired about had nothing to do with the case, and the only effect of such evidence was to unduly prejudice the jury against the plaintiff. The reason assigned that it had a bearing on the question of damages, since aman of the sort it was attempted to be shown the plaintiff was, could not earn much, did not justify the rulings. If its object was to contradict the plaintiff, it was about facts collateral merely to the issue; and we all know, that the character of the plaintiff, if that was the purpose of the evidence, cannot be established by specific acts. We will not comment further on the introduction of this evidence, than to say, that we regret such questions should have been asked and allowed.-Dolan v. The State, 81 Ala. 11; L. & N. R. R. Co. v. Pearson, 97 Ala. 212, 219.

5. The overruling of plaintiff’s objections to evidence allowed to be introduced by defendant, as indicated in assignments of error 20, 21, 22, 42, 43, 44, 45, 46, 47, 48 and 49, was erroneous. The evidence introduced was not admissible against the objections interposed, that it was irrelevant, immaterial and incompetent.

6. The introduction in evidence of the contract between the city and the Wood Pavement Company, for keeping the streets of the city in repair, was objected to by plaintiff. This contract did not in any wise relate to sidewalks and their repair, but to streets proper. The object of the evidence as insisted was, to show that the city, under this contract, paid $21,000 a year for street improvement, which, with other sums expended, exhausted its means to repair the sidewalks. But, this evidence was irrelevant. There was no offer by defendant to show that it had exhausted all its powers as conferred by charter to raise revenue, and that all its resources to this end had been fairly and fully exhausted, with no fault on its part, in doing what the charter enjoined as a duty. Mr. Rich, who was the mayor at the time, testified, that the city made no provision for the sidewalks except to appoint an inspector to compel property owners to • keep them up and in repair; that they were treated as private property; that the $21,000 contracted to be paid the said contractor was to keep the streets in repair and lay 5,500 square yards of paving, each year; that it was discretionary with the general council as to what departments it would apply the city revenues, and that they considered the needs of the other departments more imperative than repairing sidewalks. This discretion, as was shown, was exercised in that year, to the extent of appropriating over $7,000 to a hospital, when no such duty is imposed by the charter. Mr. Rich testified further that the income of the city was between $130,000 and $135,000, which was employed in paving the city, water supply, fire department, keeping streets in repair, paying salaries of officers, maintaining cemeteries, public parks, health regulations, board of health, hospital and matters of that sort. These were provided for, and money expended on them, without, as to some of them, an absolute charter injunction that it should be done, while the duty of repairing the sidewalks, as we have seen, was made an absolute duty. Some of these, certainly, were objects for the discretionary expenditure of the public money, only after the council had discharged all the duties enjoined upon them, as to which they had no discretion. This evidence, as well as that allowed from the witnesses Fry and Rich, constituting the basis of assignments of error 28, 29, 31, 32, 34, 35, 36, 37, 38, was not admissible under the objections interposed. For the same reasons, assignment pumber 37 is well taken. The object of the evidence last referred to, was to show that the city required the property owners to keep up their sidewalks. This constituted no excuse for the city to disregard its charter obligation, a duty it could not shirk, and claim immunity for its negligence, by requiring some one else to perform it for them. If the owner failed to discharge his duty, pro hac vice, the city was reponsible.

7. Another well settled principle is, that the streets and sidewalks are for the benefit of all conditions of people, and all have the right to assume that they are in ordinarily good condition, and regulate their conduct accordingly. They are required, in passing, to exercise only ordinary care, unless they know of dangerous defects. — 2 Dill, on Mun. Corp., 1007; Elliott on Roads & Streets, 469, 470.

8. The plaintiff asked the court to give the general charge which was refused.

He testified that he lived in. Mobile and was injured on the 5th of August, 1892 ; that his knee was bruised and cut, and his leg broken ; that he received the injury by falling into a hole in the sidewalk on the south-east corner of Scott and St. Francis Streets in Mobile, about half past nine o'clock at night; that he did not know of the existence of said hole before he fell into it, and only saw it after that time ; that the hole was at the end of one of the planks constituting a bridge across the gutter on St. Francis Street, and was large enough for his foot to enter, and was about fifteen inches deep, so small at the bottom that his foot was wedged into it; that he was walking with his wife, had been up Dauphin and was returning on St. Francis Street; that he was unable to extricate his' foot without assistance, fainted from pain, and when he recovered consciousness, his wife and a cab-driver were assisting him. There is no evidence in conflict with plaintiff’s statements as to when and where and how the accident occurred. Since this is all the evidence tending to show contributory negligence on plaintiff’s part, the defense as to that plea is without merit, and offered no objection to the general charge.

The evidence of the witnesses, Fry and Rich, for the city, if admissible, and the charter of the city of which we take judicial notice, make it abundantly plain, that the defense set up, that the city was without power and the means to keep the sidewalks in -repair, is utterly without any merit. The charter made it the duty of the general council to repair ; they treated it as a discretionary obligation, so far as performing it themselves was concerned; they had an abundance of means as was shown, to make the repair, which was an insignificant matter as for the time and money it would have taken ; they were spending large sums on other objects not specially enjoined, to the neglect of this one which was ; they do not show that they had levied taxes to the limit they were authorized, and in the expenditure of the means that came to their hands, they exercised arbitrary, and so far as the sidewalks of the city are concerned, an unfair discrimination. If so unsubstantial a defense were allowed to prevail, it would give immunity to the city for all the negligence of which it may be guilty in such matters, and leave those who suffer from its negligence without remedy.

This view is irresistible on the ■ evidence of Fry and Rich, if admissible and not excluded. The case is in no better condition, with that evidence excluded, for then it would not appear, if that were important, that the city was without ample means to repair sidewalks.

It was shown by one Cato, a letter carrier that, he frequently passed the point at which plaintiff was hurt, and for a month or so before the accident occurred, he noticed the hole, which looked like it came from the dripping of a pipe, and he stejoped on the side of the hole and noticed it was a bad place ; that after plaintiff's injury he went and examined it, and it looked to be about eight or nine inches deep and about eleven or twelve on top. How long the defect had existed, was not shown. That it was dangerous, and in a place it ought not to have been, the accident that happened to plaintiff fully shows. That it was at a place where it might have been easily discovered and remedied by the city officials, if they had done their duty, cannot be questioned. The neglect of the owner of the property, whose duty it was to repair his sidewalk, was the neglect of the city.- We hold, that, on the undisputed facts, the defect existed for such length of time as that by the exercise of due care on the part of defendant, it might have been discovered and remedied.

The case is such that the general charge, as requested, should have been given for the plaintiff. This relieves us from noticing the other charges given and refused.

Reversed and remanded.