75 So. 473 | Ala. | 1917
The administratrix of Robert W. Benton, deceased, instituted this action against the city of Montgomery to recover damages for his death. About 7 o'clock p. m., December 17, 1912, he was found prone and unconscious on the paved floor of the underpass leading from a point on Commerce street, in the city of Montgomery, under the street car company's track which turns above the underpass across Commerce street toward the Louisville Nashville Railroad station to the south, to the wharf on the bank of the Alabama river. He never regained consciousness, and died on December 18, 1912. At the instance of the defendant the city of Montgomery, the court awarded the city a conditional nonsuit; the condition being that the nonsuit should be effective unless the Montgomery Light Traction Company, the owner and operator of the mentioned street railway, was made a party defendant in accordance with the provisions of Code, §§ 1273, 1274. The death of Benton is attributed by the plaintiff to negligent act, failure, or omission in leaving the place and its environs, in Commerce street at or adjacent to the place where the street railway crosses the underpass, so unguarded or without warning as that intestate fell into the underpass and was thereby injured. The underpass was an existing structure when the street railway constructed its track across it; and there is evidence that the guarding walls along the underpass rising from its base or floor were *100 removed by the street railway company's corporate predecessor in rights, and had not been restored or some substitute therefor provided when Benton met with fatal injury. The circumstances shown in the evidence required the submission to the jury's consideration and decision of this issue: Whether he was injured by falling into the underpass below the street level, or whether he was assaulted and his body thrown into the underpass below the street's level.
In City of Birmingham v. Carle,
Code, § 1275, is as follows:
"Statements, Claims, or Demands for Injury Filed. — No recovery shall be had against any city or town on a claim for personal injury received unless a sworn statement be filed with the clerk, by the party injured, or his personal representative in case of his death, stating substantially the manner in which the injury was received and the day and time, and the place where the accident occurred, and the damages claimed."
This statute creates as a condition precedent to a recovery from any city or town of damages for personal injuries received the filing of the statement described in the statute. The verified statement filed with the clerk of the city of Montgomery expressly recited that the injury on which the claim was predicated was suffered on December 18, 1912; whereas the undisputed proof showed that Benton was injured the day before, December 17, 1912. This conclusion is unescapable under the following adjudications delivered here in interpretation and in application of the statute quoted. Bland v. Mobile,
The case was submitted to the jury on the issues consequent upon the averments contained in count B. The report of the appeal will reproduce that count. It is manifest that the breach of duty declared on in this count was with respect to the failure to install some guard or warning in the space intervening between the track of the street railway, on its east side, and the point where the north wall of the underpass was removed in the process of constructing the railway and its trestle over the underpass. In B. R., L. P. Co. v. Jones,
Plea 2 interposed by the railway company was not subject to the demurrer. The report of the appeal will contain it. It predicates contributory negligence of the act of Benton in taking a dangerous course over the underpass, when a safe course was open and known to him. It is essential that pleas of this character should carry the allegation that the party charged knew, or by the exercise of ordinary care would have known, that one way was dangerous and one way safe, and that, in choosing, he took the dangerous course, thereby contributing to his injury. City of Birmingham v. Carle,
While a pedestrian has the right to cross a street in which a railway is laid above the street's surface, yet in exercising this right he must bring to bear a degree of care and prudence referable to the changed situation wrought by the presence of the railway, so constructed within the confines of the street, provided, of course, he is aware, or reasonable prudence would so advise an ordinarily careful man, that the railway was so located. Charge 2, refused to plaintiff, purported to have the stated right declared to the jury. The charge was abstract. There was no evidence that Benton was, when injured, undertaking to cross the street. Non constat, he might have been moving along the railway. Furthermore, such an instruction, without having incorporated in it the rule of added care stated, possessed a possible misleading tendency that justified the court in refusing it. Again, in special charges given at plaintiff's instance the jury were advised of the right asserted in refused charge 2. The refusal of charges 5 and 8 requested for plaintiff cannot be held for error, since neither of them discriminated between the liability of the two defendants; the city of Montgomery not being, as stated, responsible in any event because of the failure to observe the statute (Code, § 1275) in presenting the claim sued on.
Charge C might well have been refused as being incomplete; but it contains a sufficient qualification with reference to Benton's presence on the trestle to avert the implication of error in giving it. Charge D given to the jury at the instance of the railway company was affirmatively faulty and should have been refused. To give it was error. It reads:
"The court charges the jury that, if there was light from the street lights or otherwise so that any dangerous or unsafe excavation in Commerce street would have been revealed by said lights, and they shall believe from the evidence that plaintiff's intestate knew the place in question or had reason to believe it did exist, then it was his duty under the law to be on the lookout, to watch, to detect, and avoid it, and if he failed so to do, and thereby contributed to his injury, plaintiff cannot recover."
In order to conclude to Benton's contributory negligence, barring a recovery by this plaintiff, he must have omitted to exercise ordinary care under the circumstances. This charge, in one vital alternative, hypothesized his guilt of contributory negligence upon the mere fact that Benton had reason to believe the dangerous place existed; whereas a pedestrian, under the circumstances here disclosed, is not guilty of contributory negligence unless in the exercise of ordinary prudence under the circumstances he would have known of the existence of the danger in the way. The charge is also susceptible of an interpretation that would make it declare a higher measure of care with respect to inspection and watchfulness than the law exacts of one who has only general knowledge of a dangerous way, or that he is in the neighborhood, on his route, of such dangerous way.
There is no fault in charge E given at the company's request, if "apparent" is accorded the meaning synonymous with "obvious."
Charges M and N given at the company's request conform to what has been heretofore ruled as upon the authority of B. R., L. P. Co. v. Jones, supra. There was no error in giving them.
For the error stated, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.