Arndt v. City of Cullman , 132 Ala. 540 ( 1902 )

HARALSON, J.

— Tbe complaint consisting of two counts originally, was subjected to demurrer on numerous grounds which were sustained. Thereupon plaintiff amended by adding six other counts, to which defendant demurred on 36 grounds, all of which Avere sustained. The plaintiff allowed to amend, added eight other counts, to which defendant’s counsel interposed 73 grounds of demurrer, which were sustained as to all the counts, except the 15th and 16th. To these two counts defendant filed seven special pleas, besides the plea of the general issue. Demurrers were interposed by plaintiff to all the special pleas, which were sustained excepted as to the 4th. Thereupon the plaintiff took issue, and the case was tried upon the plea of the general issue, and on issue joined on the 4th plea.

Some of the counts proceed for the claim of damages on the alleged negligent construction of a sewer, in that it diverted the water from its natural flow and precipitated it onto plaintiff’s lot, doing it great damage; others for its negligent construction, in that it was too small to carry off the waters let into it, and they were backed onto plaintiff's lot, and still others, that the city allowed the sewer to fill up and become choked with sand, gravel, and dirt, causing the water to hack onto plaintiff’s lot, doing the damage complained of, of which condition the city had notice and did nothing to prevent it.

The charter of the city is a public act of which courts take judicial notice, as though it had been set out in each count in the declaration.—Smoot v. The Mayor, 24 Ala. 112, 121; Albritton v. Mayor, 60 Ala. 492.

The charter of Cullman provides, that the mayor and councilmen “shall have full and complete power,” among other things, “To have free power and authority to cause and procure all streets, alleys, and sidewalks now established or hereafter to be established in said city to be graded, leveled, curbed, etc.; * * * To have all such power and authority as may be needed to compel the abutting- property owners to pay all or such portion of the expense and costs as they may decide, of the same, and on failure or refusal of the property owner to pay such amounts, to tax the same against the property, which tax shall have, the lien of and be enforced and collected as other city taxes;” and “To establish, keep in repair, regulate and control drains, gutters, sewers, aqueducts and reservoirs, and to compel lot owners to drain the same [the lot], and ditch it [the lot] at the .expense of the owner when the-owner fails or refuses after five days’ notice to- drain or ditch it [the lot]” etc. “To erect, establish and keep in repair bridges and culverts* and to adopt regulations necessary for the same.”— Acts 1890-91, p. 160, § 19, subdiv. 11, 12, 35.

In section 24 of the charter, the mayor and councilmen are given the5: authority to levy and collect each year upon all real and personal property and subjects-of State taxation iu said city, a tax not exceeding one-half of one per cent of the value of such property or subjects Of taxation during- the preceding year, etc.

The city charter haying devolved on the corporate authorities the duty of causing streets and sidewalks in said city to be graded and leveled, and to establish, keep in repair, regulate and control drains, gutters, sewers, aqueducts, etc., or cause this to he done, a duty to these ends was thus imposed on the city, and it was only necessary to aver in the complaint the existence of this duty by way of inducement, which is sufficiently certain when it is averred, generally, that it was the duty of the city to keep the sewer in repair or proper condition, or that it was legally hound to do so, or some such equivalent averment.—City Council v. Wright, 72 Ala. 411.

It was incumbent on the plaintiff, in order to maintain the action, to aver and prove express notice of the alleged defect in the sewer, or facts from which it might he inferred that the corporate authorities Avere properly chargeable with constructive notice thereof. “'Constructive notice of such defect [hoAvever;] may he inferred from its notoriety, and from its continuance for such length of time as to lead to the presumption that proper* officers of the toAvn or city did in fact know, or with proper Angilance and care might have known the fact.’’—City Council v. Wright, supra, and authorities there cited. The facts stated in some of the counts of the. complaint, as we shall see, Avere sufficient as a.ver-ments of implied or constructive notice.—City Council v. Wright, supra; Lord v. City of Mobile, 118 Ala. 360.

In the City of Eufaula v. Simmons, 86 Ala. 515, it Avas held that if a municipal corporation in the construction of ditches and sewers in the improvement of its streets, causes a. large quantity of rain water, which naturally floAved in another direction, to he diverted to flow on the plaintiff’s property in destructive quantities, the defendant corporation would be liable in damages for just compensation, Avliether the AA'ork Avas done negligently or not, and a fortiori, when such ditches and drains have been constructed in a negligent manner. In this respect a. corporation stands on the same footing as a private individual, and incurs the same liability. 10 Am. & Eng. Ency. Law (2d ed.), 350, 352.

• “The accumulation in one channel of a large volume of Avater by the act of the city, places upon it the. duty to see to it that suitable provision is made for the escape of the Avater into natural Avater courses or other channels Avhich Avill carry it off without injury to private property; and if by reason of the insufficiency of the drain or sewer provided, the accumulated • waters are cast upon private property to its injury, the city must respond.” * * * “If surface Avater is collected in gutters, and made to Aoav to the mouth of a seAver, where by reason of the insufficiency of the sewer, it accumulates in large quantities and thence flows hack upon private property, the municipality must respond in damages.”—24 Am. & Eng. Ency. Law, 946, 947.

“A city has no more right to- plan or create an unsafe and dangerous condition in one of its public streets than it has to create a public nuisance;” and it may be added that it has no such right in respect to. the creation and maintenance of drains and sewers that are insufficient and damaging to abutting, property owners.—Mayor v. Lewis, 92 Ala. 352; Mayor v. Starr, 112 Ala. 98; Albritton v. The Mayor, 60 Ala. 486.

In accordance with these principles it was held in the Ala. G. S. R. R. Co. v. Shahan, 116 Ala. 302, that a complaint Avhich shoAvs the situation of plaintiff’s property, so as to be overfloAved from a culvert and damaged, and avers that the culvert was insufficient for the passage of Avater during rainfalls, and that defendant negligently alloAved said culvert to fill up partially by the AArashing of sand and loose rock in it, Avhich further obstructed the free passage of water through said culvert, by reason of which negligence on the part of defendant the water from said culvert backed over and flooded plaintiff’s storehouse, causing injuries compained of, sufficiently avers negligence on the part of defendant.

From the principles above announced, it will appear that counts 1, 6, 7 and 8 are defective, and the demurrers to them should have been sustained; and that those numbered 2, 3, 4, 9, 10, 11, 12, 13, and 14, were good and demurrers to them shoud have been overruled.

The issues on which the case was tried arise, first, on the allegations of the 15th and 16th counts in tlie complaint, charging negligence on the city, which is denied by defendant; and second, —if defendant is shown to have been guilty of negligence,—on the 4th plea, charging contributory negligence on the part of the plaintiff, from which his injuries proximately resulted.

As to the 4th plea, it may be well to state, that under the provisions of the charter, which we have copied above, the city had no right to compel the plaintiff on notice to do so, to raise and level the sidewalk adjacent to his lot, but that they had merely the authority to raise it themselves and require plaintiff to pay for the cost of doing the work; but this question is not raised by demurrer.

The averments of negligence in these counts are that the defendant having power by charter to that end, graded First avenue and raised the grade thereof above plaintiff’s lot, from 6 to 8 feet, and thereby changed the natural flow of the surface water that fell, and collected it on First avenue, in time of rainfall, from its natural course; and in order to drain said water from said avenue, the city made a drain on the opposite side of the avenue from plaintiff’s lot, in length 100 feet or more, and then across said avenue, so as to carry said water hack to its natural channel below plaintiff’s lot; that plaintiff, in order to protect his lot from damage by the washing of clay and sand used in the grading of said street, erected a stone wall on his said lot, along First avenue, 6 or 8 feet high by about 100 feet long; that in the construction of said drain by the city on the opposite side of the avenue from plaintiff’s lot, the city negligently constructed it of insufficient size to carry off the surface water that collected on First avenue in time of rainfall, opposite plaintiff’s lot; that the city constructed a culvert in said ditch across the avenue to carry off this water, and made it so small that it was incapable of carrying off the water that flowed into it, and by reason of such incapacity, the culvert became totally or partially stopped up with said dirt and .trash, and on the 1st of March, 1899, large quantities of water (from rainfall) collected on said avenue and in said ditch or drain and caused the same tn overflow, and volumes of water in destructive quantities were east from the avenue onto plaintiff’s lot; that his said Avail was undermined and thrown down and quantities of sand and clay were cast on plaintiff’s lot, and a large part of its surface and soil Avere washed away, etc. The foregoing are the substantial averments of negligence and damage as set up in the 15th count.

The 16th like the 15th in other respects, sets up also as negligence that it was the duty of defendant to keep said, drain or sewer in proper condition and repair, so that thje water that collected thereon in time of rainfall could pass off; and averment is made that said ditch, drain or sewer became choked or stopped up by the washing of sand, dirt or trash therein, so that the water that collected therein in time of rainfall could not pass off, and that'although the defendant had notice that said ditch or drain Avas so clogged or choked, it failed to exercise reasonable care, skill and diligence in removing such obstructions, and allowed the same to remain, although it had reasonable time to clean the same out, until the 1 March, 1899, Avhen large quantities of water collected therein, and caused said drain to overflow and cast the water across the avenue in the manner and with the results set forth in the 15th count.

The contributory negligence of the plaintiff, set up in the 4th plea is, that he Avas notified to raise the level of his sidewalk to his lot, which he failed to do, and if he had complied Avith its requirements, the damage complained of would not have occurred.

There were numerous questions raised on the admission and exclusion of evidence. These questions in groups, relate to showing that plaintiff’s lot was below the grade of the street fixed and leveled by the city. As to this it. may be said that the city was not absolved from damages to plaintiff, by so changing the grade of said avenue as to prevent tbe natural flow of the water from the street and diverting it onto plaintiff’s lot.—Town of Avondale v. McFarland, 101 Ala. 381; Hughes v. Anderson, 68 Ala. 280; Mayor v. Coleman, 58 Ala. 570; Mayor v. Jones, 58 Ala. 684; Cooley on Torts, p. 688, § 520.

Other objections related to the admission of evidence by defendant tending to show the condition of the lot at the time of the trial. Such evidence on another trial should he admitted.

Others still related to the notice or want of it that defendant had as to the condition of the culvert, and the character of the rainfall at the time of the alleged damage.

The defendant sought to introduce evidence tending to show the character of the rain that fell, with the view of showing that it was unprecedented. Plaintiff in rebuttal sought to show that it was not even extraordinary in that section, and questions designed to bring out such evidence were not allowed. It is manifest, that under such conditions the court should have allowed the evidence. A municipal corporation, for the efficiency of its sewers, as has been held, is bound to main1: provision for such floods as may be reasonably expected, judging from such as have previously occurred, although at irregular and wide intervals of time, and is. not liable for damages which could not have been provided for or guarded against by the exercise of ordinary diligence such as unprecedented rains.—10 Am. & Eng. Ency. Law, 243; 13 Ib. 714; 24 Am. & Eng. Ency. Law (1st ed.), 948; Columbus & W. R. Co. v. Bridges, 86 Ala. 449.

By observance of the principles announced, there should be no difficulty, on another trial, as to questions in the admission and rejection of evidence. It would greatly extend the opinion to consider them separately or even in groups, and we fail to' see the necessity for so doing.

The court, at the. request of plaintiff gave numerous charges, quite as favorable to him as could have been expected. A great many were asked by him and refused, which we deem it unnecessary to- pass on, since counsel make no argument to show the alleged error of the court in refusing to give them.

• Under the issues on which the case was tried, while charge 1 may not have been positively incorrect, yet it might have been properly refused, because of its tendency to mislead the jury to assume that the defendant was 'guilty of negligence.

If charge 2 were otherwise correct, it was rendered bad in postulating that the jury must believe the fact therein stated as necessary to belief, “by a preponderance of the evidence.” Belief of the fact to reasonable satisfaction was all that was necessary. Moreover, the fact therein stated as necessary to their belief, while averred in count 16, and if that were the only count, would be necessary to be proved, is not found in count 15, under which the plaintiff might have been entitled to recover, without reference to the proof of this particular fact found in count 16. The charge went only to the latter count, and not to both counts on which the case was tried.

Charge 3 is based on a misapprehension of the issues in the case, and was improper. There is no averment that there was an unskillful construction of the sewer which was of sufficient size to- cany away the waters. The contention was that the city had constructed a sewer which was of insufficient size to- discharge the accumulated waters. Moreover, the rights of plaintiff were not dependent on the error of judgment of the city in respect to constructing a sewer of sufficient size to carry off the water, even if the work on it was done in a skillful manner.

Charge 4 is predicated on the idea of plaintiff’s having built a weak and insecure wall, whereas, he was not bound to construct any wall at all. In so doing, as the evidence tends to- show, out of great caution, and as a voluntary measure of safety, he went to very considerable expense to- protect himself against overflows from the street, after the city had- graded the streets and done that which threatened him with overflows from waters diverted from their natural channels. The city was bound to protect him against overflows caused by its own conduct. The charge was also- argumentative, and lays stress on particular phases of the evidence.

No error in the other charges is insisted on.

Reversed and remanded.