City Council of Montgomery v. Comer

46 So. 761 | Ala. | 1908

DENSON, J.

Across one of the sidewalks of the-city of Montgomery the city authorities had placed a wooden sewer about 12 inches wide and 10 inches deep. It extended from the property line into the street. It had been in place several years, and on account of the dirt with which it was covered it was invisible except at its month on the street. For a period of four years the sewer had not 'been examined or repaired by the city authorities and was in a decayed condition. On the 19th of September, 1906, between 8 and 9 o’clock in the morning, the plaintiff, walked along the sidewalk, stepped upon it, directly over the sewer and the sewer gave way, and his foot went through a decayed plank to the bottom of the sewer. He fell, and sustained an injury to his hip. Plaintiff testified that the sewer was invisible on the sidewalk, on account of the fact that it was covered with dirt, but that the end of it, where it entered the street, was visible, and that he noticed, that one or two of the little hoards that covered the sewer-had been knocked off at the point beyond the sidewalk where the sewer passed into the street, but that there-was no apparent defect on the sidewalk. The cause was tried on the general issue and a plea setting up contributory negligence. From a verdict for the plaintiff for $500 the defendant has appealed.

The liability of the city for injuries suffered by reason of a defect in a sidewalk is rested upon negligence Section 24, Charter of Montgomery; City Council v. Wright, 72 Ala. 411, 47 Am. Rep. 422. The evidence shows there was a defect, and the consequent injury; but the charter (section 24) provides that no liability shall attach unless the injury occurred after the defect “had been called to the attention of the city council, or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the city council.” There ■is no pretense that the defect had been expressly called to the attention of any city official- and it may be conceded that a casual looking at the surface of the sidewalk would not have revealed the defect. But the city built the sewer of plank — perishable material — material the authorities were bound to know would decay. When it was built does not appear by the evidence; but the city had not repaired it in four or five years. The ends of the planks that extended into the street were decayed and Somewhat broken down.?1’ These ends were visible to persons passing by, and it may be assumed that they were as easily observable by any city official charged with the duty of inspection; yet the sewer was left in that condition and without repair. Its decayed and broken condition indicated that it must have been in need of repair for some time. At least, we are of the opinion that, on the evidence, whether or not the defect had existed for such length of time as to> raise a presumption of knowledge on the part of the city was a jury question. — Sherwood v. District, 3 Mackey (C. C.) 276, 51 Am. Rep. 776; Board, etc., v. Legg, 93 Ind, 523, 528, 47 Am. Rep. 390. On the considerations above expressed, charges 1 and 2, requested by the defendant, were properly refused.

The plaintiff may have known the sewer was defective and decayed, yet he may have been in the exercise of that care which a. reasonably pjrudent person would have exercised in passing along the sidewalk. From the evidence we cannot say he was not in the exercise of such care, and therefore hold that the court committed no error in refusing charge 3.

If, as decided above, notice to the defendant of the defect and contributory negligence were questions for the jury on the evidence, it must follow that charge 4, requested by the defendant — the general affirmtive charge — was properly refused.

Affirmed.

Tyson, C. J., and Haralson and Simpson, JJ.,concur.