City of Birmingham v. McKinnon , 200 Ala. 111 ( 1917 )

We held on a former appeal in this case (McKinnon v. City of Birmingham, 71 So. 463¹) that the complaint was not subject to any ground of the demurrer that had been taken against it. The complaint and the demurrer are just as they were then, and, for the purposes of this case at least, the ruling must stand, for it must be that, if the demurrer took objections to the complaint which should have been sustained, they were not then sustained, because they were not then presented to this court in a way that called for decision.

The second, third, fourth, twelfth, and eighteenth assignments of error have been answered by the opinion in the recent case of City of Birmingham v. Muller, 197 Ala. 554,73 So. 30, where we held the rule that:

"The knowledge, or means of knowledge, of an officer of a municipality will be imputed to the municipality, where such officer is in charge of the streets, or is charged with the duty to make repairs or remedy defects, or it is his duty to report the matter to some officer with authority to act." 6 McQuillin, Mun. Corp. § 2810.

While, as a general proposition, municipal corporations are not liable in damages for the negligence of their police officers, yet where the duty to remedy defects or report the same to an officer with authority to act is imposed on officers who in other respects discharge governmental powers, in respect to the special duties so imposed they are the mere ministerial agents of the municipality, which therein is deemed to act, and is answerable, in its corporate capacity rather than as an arm of the state. City of Bessemer v. Whaley, 187 Ala. 525,65 So. 542.

We have been unable to avoid the conclusion that the trial court erred in those rulings on questions of evidence which are shown by the fifth, sixth, eighth, ninth, tenth, and eleventh assignments of error. Plaintiff, in the nighttime, stumbled over a stake or stob and a wire that had been placed by the owner at the corner of a lot at the intersection of two streets. The lot, which was uninclosed towards the front, was on a level, approximately, with the intersecting sidewalks, which were paved, and the owner had set the stake at the corner and strung a wire between it and other stakes; his object being to prevent annoyance by pedestrians who, cutting the corner, would walk over his lawn. These stakes and the wire on numerous occasions had been replaced by the owner after other persons had torn them up, and there was some question whether they had been placed back in the exact places from which they had been taken. The pavement was not laid flush with the property line, but between the two a narrow strip of about 12 inches was left. The issue of fact between the parties was confined within narrow limits. Plaintiff contended that the stakes and the wire were placed immediately next to the inner line of the pavement, and even that the stake at the corner leaned over the pavement, thus obstructing a part of the sidewalk over which he had a right to pass, and over which he was passing at the time of his injury. If this view of the fact in controversy was accepted by the jury, plaintiff was entitled to recover, unless indeed he was guilty of contributory negligence. City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22.

Defendants on the other hand — the city and the owner of the lot were sued jointly — contended that the stake over which plaintiff stumbled was set at the property line and that the legal cause of plaintiff's mishap, for which they were in no wise responsible, was to be found in the fact that plaintiff in turning the corner trespassed upon the lot. Plaintiff was allowed, over defendants' objection, to prove that on a number of occasions other persons — little children, some of them — had fallen over the wire. This was prejudicial error, and for it the judgment must be reversed. Mayor and Aldermen of Birmingham v. Starr, 112 Ala. 98, 20 So. 424; Collins v. Dorchester, 6 Cush. (Mass.) 397. This was evidence of collateral facts which furnished no legitimate ground of inference as to the narrow issue contested between the parties, or any of the formal issues proposed by the pleading, but not made the subject of any real dispute. One of the witnesses testified that he had fallen over the stake at the corner; the places of the other occurrences are not fixed; they may have been away from the corner, and this may have been of some consequence, for unless a pedestrian were turning the corner in the narrow space between the outer corner of the lot and the inner corner of the pavement, it would seem improbable that he would fall over the wire unless he was going on or off the lot. At any rate, the fact that other persons fell over the wire or the stakes did not tend to show whether those things were within the property line or encroached upon the sidewalk. Non constat, these other persons were some of the trespassers, against whom the owner had set up a sort of barricade and a sign that their frequent intrusions were resented.

Birmingham Railway v. Alexander, 93 Ala. 133, 9 So. 525, was a very different kind of case. The gravamen of the charge against the defendant in that case was that it neglected to keep its track at the point where the accident occurred in such condition as to permit the free and unobstructed passage of vehicles over it. The court held that the defendant should have been allowed to show that other vehicles did constantly pass over the track at that point and about that time without difficulty or hindrance, as competent evidence that it had performed its duty in respect to the condition of the track; that is, that the track was in good condition, suitable for safe use. The same idea was given expression in Starr's Case, supra, at a point other than that to which we have referred in our citation above, and received much consideration in Southern Ry. v. Lefan, 195 Ala. 295, 70 So. 249. In the instant case there could have been no question whether the stake and wire at the corner, 18 to 24 inches above the level of the sidewalk, if they were on the sidewalk, constituted a defect in the sidewalk. If, to illustrate the point under discussion, it had been conceded on all hands that the stake stood out in the sidewalk and that the wire was stretched to it across the sidewalk, bringing the matter to the touch of common sense, it would not have appeared reasonable that defendant should be allowed to question plaintiff's right to recover on the ground that many persons had passed that way without falling over the stake or wire. The practical question presented for solution was not one that depended in the least on the evidence of experimental use or the experience of individuals. There was, or should have been, no question whether the stake at the corner and the wire attached to it had such probable capacity for harm that due and reasonable care would prohibit their erection or maintenance on the sidewalk of a public street; but the question was whether this arrangement of stake and wire did encroach upon the sidewalk, where in no event had it any right, or whether it was on the lot, where, for aught appearing, the defendant owner had a right to put and maintain it, and where the defendant municipality had no need or occasion to be concerned about it. In the one case, the stake and wire were unquestionably an unlawful obstruction to the ordinary safe use of the sidewalk, and hence a defect (City of Bessemer v. Whaley, supra); in the other, it was not. In the one case, the question of contributory negligence aside, plaintiff was entitled to recover; in the other, he was not. Now, as we have already in effect said, that other people at different times had fallen over the wire, or even the stake at the corner, did not shed any legitimate light upon the obviously most important issue in the case, viz. whether the stake over which plaintiff fell was at the outer corner of the defendant owner's lot or at the inner corner of the pavement, nor did it bear relation to any other formal or litigated issue in the cause. But it was probably highly prejudicial to the defendants. Hence our conclusion that it was reversible error.

It was also irrelevant and immaterial that the witness Hull on numerous occasions had pulled up the stakes set out by the defendant owner of the lot. The inference or evidential presumption that the witness did no wrong in pulling them up is no whit stronger than the inference or presumption that the defendant owner of the lot did no wrong in placing them where they were.

The complaint alleged that plaintiff had suffered his injury on May 20, 1914 (and so the proof showed), and that he had presented his claim for damages to the municipal authorities as prescribed by the statute. In proof he offered a verified claim in which it was alleged that he had suffered his injury "on, to wit, May 20, 1914." Defendants objected to this proof on the ground, to state the substance of the objection, that a claim for damages suffered "on, to wit, May 20, 1914," was not a claim for damages suffered on May 20, 1914 — was not a compliance with the statute (section 1275 of the Code), which requires that such claims shall state "the day and time" of the injury. Defendant cites Central Lumber Timber Co. v. McClure Lumber Co., 180 Ala. 606, 61 So. 821, and Henry v. McNamara,114 Ala. 107, 22 So. 428. In these cases it was necessary that it be shown that a fact pleaded occurred before or after a date certain, and the court held that an allegation that the fact pleaded occurred on a date laid under a videlicet did not sufficiently show its occurrence before or after the date certain. Here the case is different. It was of no special consequence whether plaintiff's injury occurred on one day or another. The only purpose of the requirement that a claim be filed stating "the day and time" is to give the municipal authorities an opportunity and data for an investigation. Technical accuracy is not required. It is enough if the municipal authorities are fairly informed. McKinnon v. City of Birmingham, 71 So. 463.² While the purpose of a videlicet in pleading is to give notice that proof may be addressed to an occurrence either at or about the time alleged, we think we treat this question with proper solemnity when we say that the claim certainly directed attention to the date alleged and that the videlicet had in the circumstances no office to perform. It certainly did not inform the municipal authorities that plaintiff would rely on proof of an accident that would, of all dates, exclude the date alleged. It directed attention to the date alleged, and the authorities knew that they need not look outside of that date.

Plaintiff's testimony tended to show — approximately, and nothing more was to be expected — his average earnings and the time he had lost from the practice of his profession. This was reason enough for the refusal of those special charges requested, to the effect that plaintiff could recover no more than nominal damages on account of loss of practice.

It rather seems that the charge as to plaintiff's loss of earning capacity should have been given. Alabama Fuel Iron Co. v. Ward, 194 Ala. 242, 69 So. 621. The question will probably not recur in its exact present shape.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.

On Rehearing.¹ 196 Ala. 56.

² 196 Ala. 56.