56 So. 723 | Ala. | 1911
The tAvo counts of the complaint, so far as concerns the objections taken to them by demurrer, ■Avere substantially equivalents of each other and, in respect to the averment of notice of the defect, folloAved forms which have had the approval of this court.—
In argument against the sufficiency of the complaint it is stated that the death of plaintiff’s intestate appears to have resulted from a defective sewer plan, and it is said that the municipality is not answerable for the consequence of such a defect. In the first count the complaint is that defendant was guilty of negligence in alloAving water to accumulate on and run along the street in such volume and Avith such force as to Avash plaintiff’s intestate into a sewer where he was drowned. To this, in the second count, is added the averment that defendant negligently- permitted the mouth of the sewer to remain unguarded. Appellant’s contention in respect to its liability under these conditions is repeated in a number of charges requested by it and refused by the court. It is also expressed in a number of exceptions reserved on the admissibility of evidence. It is unnecessary to tre'at separately the assignments of error based upon these rulings. By them the defendant invokes that principle of law Avhich relieves a municipal corporation of liability for errors of judgment in the planning and execution of public improvements when its officers have followed the advice of one skilled in such matters and have used due care in the selection of their adviser. Snch advice will not, hoÁvever, excuse where there has been such palpable lack of skill and care as ■ought to have been appreciated by men of ordinary ex
Demurrers to the several special pleas, setting up the contributory negligence of the parent or other person having charge and control of plaintiff’s intestate, were well sustained, as was decided in the recent case of Southern Railway Co. v. Shipp, 169 Ala. 329, 53 South. 152.
Appellant also assign's for error the court’s ruling on the sufficiency of plea A. We have been unable to find in the record either demurrer to this plea or ruling on its sufficiency; but, since the same proposition is advanced in some of the charges refused to the defendant and reserved for review Ave state our opinion that it presented an immaterial issue. The contention seems to be that a personal representative cannot maintain an action for the Avrongful death of his intestate, Avho Avas a minor, as long as there is a parent surviving. The language of. the statute authorizing the action, as it Avas at the time of the death of plaintiff’s intestate and the bringing of this suit (Code 1896, § 26) affords a sufficient answer to this contention. It proAdded that the parent or the personal representative might sue and recover such damages as the jury might assess. Under
Plaintiff’s case was this: After a heavy rainfall, water stood over the roadway and sidewalks of defendant’s street. On previous occasions a like condition had frequently followed upon heavy rains. A ditch, three or four feet deep, running along the edge of the sidewalk, conducted the water to the mouth of a sewer pipe 18 inches in diameter. On the occasion in question, roadway, sidewalk, and ditch were hidden beneath the accumulated water which spread over them all. Plaintiff’s intestate, a child under seven years of age, was wading about the street with other children when he stepped into the ditch, was drawn by the water into the unguarded mouth of the sewer pipe, and was drowned. To this case, and the inferences the jury were free to draw from these facts, it was no answer that the seAver had been constructed under advice of a competent engineer, or that the engineer still thought that the
The same proposition was presented in a different guise Avhen the defendant sought to have its witness state that well-regulated cities in America followed the plan of constructing sewers shown to have been folloAved at the place in question. No practice can excuse negligence. The defendant could not avoid responsibility for negligence in maintaining its streets, if the jury found there Avas negligence, by showing the practice of cities in America or elsewhere in planning systems of drains and sewers, and this, notwithstanding the opinion of the Avitness that such cities in that respect were well regulated. There was, therefore, no error in the
This suit was properly brought against the mayor and aldermen of Birmingham, a municipal corporation, and so the defendant is styled in the judgment rendered. Pending the suit and before judgment the Municipal Code Law of August 13, 1907, was passed (Code 1907, § 1046 et seq.), providing that all municipal organizations should be bodies politic and corporate, having perpetual succession, “under the name now used or hereafter assumed, * * * and each under such name as the ‘City of-,’ or ‘Town of-,’ as the case may be, shall sue and be sued,” etc. There was no amendment of the complaint to meet this change of corporate name, as there might have been. Appellant takes the point that the judgment erroneously followed the summons and complaint in the matter of the name and style of the defendant corporation. The change of name effected no change in the rights or liabilities of the corporation. As for the formal requirements of the judgment in a case prosecuted under the circumstances here shown, that was clearly provided for at the time of the enactment of the Municipal Code Law. The provision was that “all suits then pending in favor of or against municipal corporations shall continue to judgment unaffected by this chapter, and shall be enforced in favor of or against such city or town, as the case may be, notwithstanding a change of name or organization.” — Code, § 1050.
After considering those assignments of error which have been argued for the appellant, we have reached the conclusion that the judgment ought to be affirmed.
Affirmed.