City Council of Montgomery v. Wright, 72 Ala. 411

City Council of Montgomery v. Wright

72 Ala. 411 | Ala. | 1882

SOMERVILLE, J.

The charter of the city of Montgomery is a public statute, of which the courts will take judicial notice. It provides that the corporate authorities may sue and be sued by the name of “ The Oity Council of Montgomery.” The court must, therefore, judicially know the legal identity of the defendant corporation in this action with that of the municipality known as the City of Montgomery.—1 Dill. Mun. Corp. § 83; Kelly v. Trustees A. & C. R. R. Co., 58 Ala. 489; City of Selma v. Perkins, 68 Ala. 145.

It is not required by the rules of pleading, that litigants should specially aver facts of which the courts commonly take judicial cognizance. Hence, it was unnecessary to allege in the *420complaint that the defendant was a body corporate. — 2 Chitty on Plead. (16th Amer. Ed.) p. 13.

The city charter expressly devolved on the corporate authorities the duty of keeping “ the streets and highways ” in repavr. It was only necessary to aver the existence of this duty, by way of inducement; and this was done with sufficient certainty in the complaint, by the general allegation, “ which the defendant is bound to keep in repair.”—S. & N. Ala. Railroad Co. v. Thompson, 62 Ala. 494, 500; Ala. & Fla. R. R. Co. v. Waller, 48 Ala. 459.

In order to maintain the present action against the defendant, it is true, as insisted by appellant’s counsel, that the plaintiff must aver and prove express notice of the alleged defect in the highway, or facts from which it may be inferred that the corporate authorities were properly chargeable with constructi/oe notice. It is well settled, on plain principles, that constructive notice of such defect “ may be inferred from its notoriety, and from its continuance /or such length of time as to lead to the presumption that the proper officers of the town [or city] did in fact know, or with proper vigilance and care might have known the fact.”—Reed v. Northfield (13 Pick. 94), 23 Amer. Dec. 662; Harriman v. Boston, 114 Mass. 245; 2 Dill. Mun. Corp., 3d Ed., § 1024. The facts stated in the complaint were sufficient as an averment of implied or constructive notice.

In view of the foregoing principles, there was no error in overruling the demurrer interposed to the complaint, and the assignment of error based on this action of the court below will be overruled.

The duty of municipal corporations to keep their streets and side-walks in a reasonably safe state of repair for public use is unquestionable, when imposed by positive statute, and may often exist without it. — 2 Dill. Mun. Corp. (3d Ed.), § 1017. This duty does not relate to a part, but extends to the whole width of these public thoroughfares. If any portion of a sidewalk be negligently left in such condition as that pedestrians can not travel over it with reasonable assurance of safety, by night as well as by day, the municipal authorities may be chargeable with a neglect of this duty to its citizens, and the public generally.—City of Chicago v. Robbins, 2 Black, 418; Shearman and Redf. Reg. § 385; Bacon v. Boston, 3 Cush. 174. The first and third charges, given at the request of the plaintiff, were mere assertions of this principle, and were properly given.

It is insisted that the court erred in giving the second charge requested by the plaintiff, because it undertakes to judicially declare that it was not negligence p&r se for the plaintiff to pass over the side-walk in question at night.

*421The question of negligence is always deemed one of fact, for the determination of the jury, in all cases of doubt, either where the facts are disputed, or where different minds may reasonably draw different inferences or conclusions. But it is a question of law, to be decided by the court, where the facts are undisputed, and the inference to be drawn from them is clear and certain. This, we think, is the sounder and better rule on the subject.—Railroad v. Stout, 17 Wall. 657; 2 Dill. Mun. Corp. (3d Ed.), § 1026. It is expressed by a standard author in the following words: “ When the facts are clearly settled, and the course which common prudence dictated can be clearly discerned, the court should decide the case as a matter of law.” Shear, and Bedf. Negl. §11. Negligence is said by Mr. Wharton to be a mixed question of law and fact, “ to be decided as a question of law by the court, when the facts are undisputed, or conclusively proved, but not to be withdrawn from the jury when the facts are disputed, and the evidence is conflicting.” Whart. on Neg. § 420, and cases cited.

The facts in this case are undisputed. The general width of the side-walk, over which plaintiff was walking when injured, was about ten feet, and at the immediate locality of the defect, or “ wash-out,” it was over seven feet. The wash-out was about eighteen inches wide, and encroached upon the outer edges of the side-walk about two feet, leaving between it and the fence a pass-way of about five and a half feet. The side-walk was elevated about three feet above the street, or road-way, and the wash-out extended from the top of the side-walk all the way down to the street. This defect had existed for many months, and was known to the plaintiff ; and the route “ was the only one in the city used by all the people having occasion to go in that direction^

The defense interposed was contributory negligence on the part of the plaintiff, based upon an alleged want of ordinary care on his part. It would seem a.legal truism to say, that it could not he deemed a want of ordinary care for the plaintiff to do what all other persons, similarly circumstanced, were'in the constant habit of doing, without accident or injury to themselves, so far as is disclosed by the evidence, which is set out in the bill of exceptions. There was ample room for the plaintiff to have safely passed between the fence and the wash-out, and his very familiarity with the existence of the defect may have been an argument in his own mind inducing him to believe that he could pass it in safety. The possession of a walking-cane, with which he seems to have felt his way along when approaching the defective place, was a circumstance,'also, favorable to the prospect of his safety. The plaintiff could not, we repeat, have been guilty of a want of ordinary car o, prima *422facie, in selecting a route which was ordi/narily travelled with safet/y by all pedestrians going in the same direction. If be was guilty of contributory negligence at all, it was not in selecting the route, but in the want of care exercised in the act of walking, after he had made the selection.

It is true, as argued, that he may have gone by some other less frequented street, or have followed a pathway, not often travelled, on the opposite side of the same street, where the evidence shows, however, there was no regular side-walk. But this was only a condition of the casualty. It is not what is commonly called the '■'■proximate cause” of the injury, or what is termed by Mr. 'Wharton the “juridical cause” of it. “The negligence,” he says, “to make & juridical cause, must be such that, by the usual cou/rse of events, it would result, unless independent disturbing moral agencies intervene, in the particular injury. It may be negligence in me to cross a railroad,” he adds, “ on a level, when by going a mile around I could cross on a bridge. Yet this negligence, in case I am struck by a train, is not the juridical cause of the collision, if I keep a good loolo-out when I reach the roadP — Wha.rt. on Neg. §§ 324, 303. The practical construction of a “proximate cause” has been said to-be, one from which “ a man of ordinary experience and sagacity could foresee that the result might probably ensue.”—Shear, and Redf. on Neg. § 10; McGrew v. Stone, 53 Penn. St. 436; Bennett v. Lockwood, 20 Wend. 223. Or, as otherwise stated, in the case of defendants sought to be charged, the principle has been declared to be, “ every defendant shall be held to be liable for all those consequences which might have foreseen-omd expected as the result of his conduct, but not for those which he could not have foreseen, and was therefore under no moral obligation to take into consideration.” — 3 Parson Contr. (6th Ed.) § 179.

The court did not err, therefore, in charging, as matter of law, that the failure of the plaintiff to select another route, under the facts of this case, did not constitute contributory-negligence per se on his part.—Erie City v. Schwingle, 10 Harris (Penn. St.) 334; Smith v. City of St. Joseph, 45 Mo. 449.

We discover no error in the rulings of the Circuit Court, and its judgment must be affirmed.