Montgomery St. Ry. Co. v. Smith , 146 Ala. 316 ( 1905 )

SIMPSON, J.

This was a suit brought by the appellee against the appellant for damages claimed to have resulted from injuries received by her in falling into- an excavation which had been made upon one of the .streets of Montgomery in the work of changing the tracks of. appellant. The demurrers to counts 1, 3, 6, 8, 10, 1.1, 13, 14, and 15 were properly overruled. Said counts do not charge disjunctively two. causes of action. — Highland Avenue & Belt Ry. Co. v. Miller, 120 Ala. 535, 24 South. 955. Nor were said counts liable.to the further objection that the city ordinance could not create a civil right based on negligence of one failing to obey it. The. fact that the city required the defendant to keep the street in repair did not make it any the less liable for negligence in leaving an excavation without the usual safeguards.

The question to the witness Ford as to> who got the permission to make the excavation, and the answer thereto, were properly admitted, as it was a proper circumstance to go to the jury, in order to determine whether the defendant was the party having the work done; and, while the answer may not prove the fact conclusively, it was proper evidence for the jury. Semines being stated to be the general manager of the defendant company, and the witness stating that he did not know what position Scott occupied, the evidence as to Semines was clearly admissible, and he could not answer the question without including Scott.

There was no error in admitting the city ordinance in evidence. — Elyton Land Co. v. Mingea, 89 Ala. 522, 530, 7 South. 666. On the same authority we hold that there was no error in permitting the introduction of section 767 of the city code. The ordinance was sufficiently proved. — Code Ala. 1896, § 1822. It cannot be .said that this ordinance related only to the tracks already laid and being operated, and not to additional Lacks to be laid. Whenever the street car company took possession of that portion of the street for the purpose of laying a track, it was “occupied by it;” and, even if so strict a construction as the appellant contends for could be adopted, the evidence in this case shows that the cross-ties and tracks were laid at the point where complainant fell, and, irrespective of the ordinance, when a street railway company takes possession of a portion of the street for the purpose of building and operating a railway under a franchise, it necessarily assumes the duty to the public to keep that part of the street occiipied by it free from pitfalls, in such condition a,s not to be dangerous to the traveling - public. — 27 Am. & Eng. Ency. Law (2d Ed.) p. 39; Nellis, Street Railway Accident Law, p. 490; Nellis, Street Surface Railways, p. 260; Id. p. 263, § 15. ,

The cases referred to in the latter part of the opinion in the case of North Birmingham Railway Co. v. Calderwood, 89 Ala. 256, 7 South. 360, 18 Am. St. Rep. 105, to the effect that a city ordinance will not be permitted tf> create a civil right in favor of third persons, based on the evidence of one failing to obey it, has no application to the present case. Those were cases based on a city ordinance requiring parties to remove snow from the sidewalk abutting,their premises, and the reason given for nonliability was that the defendant had no agency in placing the snow there and the requirements of the ordinance were merely to force the property owner to perform a duty which devolved on the city itself, and authorized the city to do it at his expense if he failed. The distinction was drawn in those cases between such a case and one in which the defendant had created the nuisance himself. — Flynn v. Canton, 17 Am. Rep. 603, 612, 613; Heeney v. Sprague 23 Am. Rep. 502, 507; Kirby v. Boylston, 74 Am. Dec. 682. On the other hand, our own court has held that a failure to comply with the requirements of a city ordinance which is reasonable is per se negligence. — S. & N. Ala. Ry. Co. v. Donovan, 84 Ala. 141, 147, 4 Couth. 142. This is not a liability on the contract made with the city, but a liability for a tort committed, under the license of the contract, which has resulted in injury to another. — Elyton Land Co. v. Mingea, 89 Ala. 530, 7 South. 666.

That part of the oral charge marked “A,” in connection with the modification .of it subsequently made, was not erroneous, but for a reason a little different from that given by the court. According to the authorities there are two exceptions to the general rule as to the non-liability of the principal for the acts of an independent contractor ;the first being, as stated by the court, where the work to be done is “intrinsically dangerous, however skillfully performed,” and the second, where the “employer owes certain duties to third persons or the public,” in which case “he cannot relieve himself from liability, to the extent of that duty, by committing the work to a contractor.” — Woods’ Maser & Servant (2d Ed.) p. 616, § 316; Mayor & Aldermen of Birmingham v. McCary, 84 Ala. 472, 4 South. 630. See, also, the able and exhaustive discussion of this principle by Parker, C. J., in Deming v. Terminal Ry. of Bufalo, 169 N. Y. 1, 61 N. E. 983, 88 Am. St. Rep. 521, in which the chief justice states that a railroad company, “having accepted the privileges and benefits conferred.-upon it, * * * necessarily took with them all the obligations and liabilities in respect to the highway which its absolute dominion over it for the purpose of carrying it across the railroad track made necessary, among which was the duty of so guarding the obstructions to the highway which were made under its direction as to save passers-by from injury.” As before stated, in the case now before the court the defendant owed a duty to the public to keep the part of the street occupied by it in a safe condiion, and it could not escape liability by committing' the work to a contractor. This principle differentiates this case from that of Chattahoochee & Gulf Ry. v. Behrman, 136 Ala. 508, 35 South. 132, where the injury was to a private lot, and also from the case of Massey v. Oates, (Ala.) 39 South. 142, where the owner was a private citizen owing no special duty to the public to keep the street in repair. In that case, also, McClellan, C. J., in referring to the first exception, draws a distinction between a case like that, where the injury resulted, not from doing of the thing which the contractor had been employed to do, ánd a case like this,-where injury resulted from the- thing which the contractor had been employed to do; to-wit, to dig the excavation in the street. —Massey v. Oates, supra.

Charge 1, requested by the- defendant, was properly refused. It was confusing. There was no error in refusing to give the general charge requested by the defendant. From what has been said as to the liability o!f the defendant to keep the place in question in safe condition, the affirmative charge, requested as to counts 1, 3, 6, 8, 10, 11, 13, 16 and 15, respectively, were properly refused. Under the principles declared' the contractor was the agent of the defendant. •

Charge 6, requested by defendant, was properly refused. The court cannot he required to declare to the jury that there was no evidence of a particular fact. — Jefferson v. State, 110 Ala. 89, 92, 20 South. 434.

Charge 13, requested by defendant, was properly refused. The fact that the city engineer might have been looking after the work did not release the defendant from the dirty resting upon it- to- keep that part of the street in safe condition.

Charge 10, requested by the defendant, was properly refused. - It was calculated to confuse the jury. It was liable to the construction that the -court had charged them that the plaintiff had done or had failed to do something Aldrich contributed to her injury.

Charge 18 was properly refused. It ivas abstract, because the evidence was not contradicted that the plaintiff was crossing the street at a regular crossing Avhen the accident occurred.

Charge 19 was properly refused. There ivas no evidence tending to show that any light had been placed at the place that evening, or that any one had extinguished any of them. The man AAdiom Timberlake said lie had employed to put lights on the work generally Aims not produced. Timberlake himself cohld not say they Avere there, and if they had been there and extinguished the lanterns still would have been there. The charge ivas abstract-

Charge 20 was properly refused, as the principle referred to does not apply where the duty rests on the defendant to keep the place in a safe condition, as heretofore shown.

Charge 21 Avas properly refused for the reason given as to charge 18, and because it Avas calculated to mislead the jury by making the impression that greater care- was required when off the sideAvalk than when on it. “The doctrine of heedlessness and inattention; as generally understood, by neglect to use reasonable care, does not arise when a person'lias the legal right to presume that he may proceed with safety, and no facts or circumstance.? are brought to his notice calculated to excite attention or care. A person traveling on the sidewalk of a municipal corporation in daytime is not required to be on the lookout for obstructions, nor is he required to feel his way at night. Tie may assume that they are in proper condition for public travel.” — Mayor & Aldermen of Birmingham v. Tayloe, 105 Ala. 178, 16 South. 576.

Charge 22, requested by the defendant, was properly refused for the same reason. As shown by said authority, it is not the duty of a traveler to “ascertain whether or not the way is clear,” though it is his duty after ascertaining that there is an obstruction, to exercise ordinary care to avoid injury.

Charge 23 should have been given. The evidence does not show whether, the credit was, given to the husband or to the wife, and in the absence of proof the presumption is that the credit was given to the husband.

Charge 25, requested by defendant, should have been given. If the plaintiff knew of the dangerous excavation in the street, or had reason to believe that it existed, it was her duty, on approaching the place, to look for it and avoid it.

The judgment of the court is reversed, and the cause remanded.

Haralson, Tyson, and Anderson, JJ., concur.