City of Montgomery v. Moon

Pauline Moon, a girl 8 years of age, fell into the railroad cut which crosses a highway in the city of Montgomery known as Highland avenue, and brought this suit by her next friend against the city of Montgomery and the Director General of Railroads, who was at the time maintaining and operating the properties of the Central of Georgia Railway Company, to recover for the damages sustained as the consequence of such fall. This is a companion case to that of City of Montgomery v. Moon, 205 Ala. 590, 88 So. 751, and bears close analogy to the more recent case of City of Montgomery v. Ferguson,207 Ala. 430, 93 So. 4.

There was a bridge over the cut at the point where the injury occurred, which bridge was maintained by the city, and the evidence for the plaintiff tended to show that at the time of the injury the railroad cut where the street and sidewalk abutted was unguarded, except by the fragments of an old fence erected some years before by the city of Montgomery, and that plaintiff fell into this cut from a portion of the sidewalk which was unguarded.

Only a few questions are here presented for consideration, and we treat them in the order of their presentation. The complaint substantially conforms to that held sufficient in the authorities above cited, and this question needs no further treatment.

The record discloses that the jury viewed the scene of the accident. At the conclusion of the evidence the court gave the general affirmative charge in favor of the Director General of Railroads, and, as held by this court in City of Montgomery v. Ferguson, supra, we are not in position to review the propriety of this action of the court. Appellant [city of Montgomery] can take nothing, therefore, from the assignment of error presenting this question.

The defendant Director General was permitted to introduce an ordinance of the town of Highland Park, to the introduction of which the city of Montgomery interposed objection; the plaintiff offering none. This ordinance could only be relevant as affecting the defendant the Director General, and as the affirmative charge was given in favor of the Director General, which action is not here to be reviewed, it is quite clear that the admission of such ordinance in no manner affects the cause upon this appeal by the city.

Upon the conclusion of the court's oral charge, counsel for the city of Montgomery requested that the court charge the jury as to causal connection between the defect complained of and the injury sustained, to which the court responded by stating to the jury that —

"Before the plaintiff may recover in this case, you must find that this defendant was negligent in such sort as proximately contributed to the injury of the plaintiff."

To this portion of the oral charge the defendant city of Montgomery excepted. Counsel in brief state that this exception was reserved for the reason that the court used the words "proximately contributed," rather than "proximately caused." There were during the progress of the cause two defendants charged with negligence as to the same injury, and the words "proximately contributed" are found in frequent use in this connection. 37 Cyc. 209; Marbury Lbr. Co. v. Jones, 206 Ala. 669,91 So. 623. There was here no reversible error shown.

Other exceptions to portions of the oral charge are based upon the assumption that, to fasten liability upon the city in a case of this character, it was important that the excavation should be within the street itself. Such is not the rule established by the authorities. "It is the duty of the municipality to guard and protect excavations made in the streets and sidewalks, or in such close proximity thereto as to endanger persons traveling on the street. 6 McQuillin, Municipal Corporations, § 2774. This rule was recognized by this court in City of Montgomery v. Moon, supra, in passing upon the sufficiency of the complaint.

Counsel for appellant argue assignments of error 12 to 25 in bulk, and as if presenting one assignment of error. The questions presented by these assignments relate to the refusal of several charges asked by the city. In answer to this argument it is sufficient to say that one of these charges was the affirmative charge in favor of the city, and it is too clear for discussion that this was properly refused. It becomes unnecessary to consider the other charges, in view of the foregoing treatment of these assignments of errors by counsel for appellant. Alabama S. W. Co. v. Griffin, 149 Ala. 423,42 So. 1034; Beason v. W. O. W., ante, p. 276, 94 So. 123.

Finding no reversible error in the record, the judgment appealed from will be here affirmed.

Affirmed.

McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.