68 So. 596 | Ala. Ct. App. | 1915
And if injury to one entitled to use the street so occupied as a right of way of travel proximately results from a failufe to meet this duty by allowing the street within the zone fixed by the statute to become dangerous as a way of public travel, a case of liability is made.—Street Railway Co. v. Smith, 146 Ala. 324, 39 South. 757; Birmingham Union Ry. Co. v. Alexander, 93 Ala. 133, 9 South. 525; 1 Nellis on Street Railways (2d Ed.) § 161; 2 Elliott on Roads and Streets (3d Ed.) § 970; Groves v. Louisville Ry. Co., 109 Ky. 76, 58 S. W. 508, 52 L. R. A. 448, and notes; State v. Jacksonville Street Ry. Co., 29 Fla. 590, 10 South. 590.
“It is a rule of law, as it is a lesson of common experience, that precautionary requirements increase in the ratio that danger becomes more threatening,” and the duty imposed by the statute on the street railway company to maintain the streets occupied by its tracks so as to “render the use of such streets safe to vehicles and persons” requires that they be kept in such condition that the ordinary and expected travel of the locality may pass with reasonable ease and safety. —1 Nellis on Street Railways, § 161, p. 360; L. & N. R. R. Co. v. Webb, 97 Ala. 311,
The statute (Code, § 1269) grants to the municipality power of supervision over the use of its streets by public utilities, and in the exercise of such supervision it may pass any ordinance not inconsistent with the statute necessary to carry out its purpose to maintain its streets in a condition that will enable the public to travel them with reasonable ease and safety.—1 Nellis on Street Railways, § 161; State v. Jacksonville St. Ry. Co., 29 Fla. 590, 10 South. 590; Borok v. Birmingham, 191 Ala. 75, 67 South. 389; Turner v. Lineville, 2 Ala. App. 454, 56 South. 603. If there is any conflict or inconsistency between the statute and the ordinance set out in count 6 of the complaint, it is not pointed out either by the demurrer or in argument.
No error appearing in the record, the judgment of the city court is affirmed.
Affirmed.