City of Birmingham v. Poole

52 So. 937 | Ala. | 1910

ANDERSON, J.

The counts of the complaint either aver that, the defendant affirmatively caused the ditch to be made, or negligently-permitted it to remain open. If it caused it to be made, then it had notice of its existence. On the other hand, whether it caused it to- be made or not, but negligently permitted it to be there, the averment that it did so negligently permit it to be in the street is the equivalent of averring notice of the defect. — Lord v. City of Mobile, 113 Ala. 360, 21 South. 366; Ensley v. Smith, 51 South. 343; City of Anniston v. Ivey, 151 Ala. 392, 44 South. 48. The complaint was not subject to the grounds of demurrer insisted upon in appellant’s argument.

The witness Sellers had testified that he called up the street commissioner’s office and requested them over the phone to fill the ditch several days prior to the plaintiff’s accident, and that whoever answered the phone said it would be attended to. The street commissioner, McCartin, denied getting the information and maldng the promise, and it was therefore competent to show that a telephone was kept in his office, that complaints of this character were usually received over the phone, and that a young man was left in his office with authority to receive them during his absence and report same.

Charge 1, the general charge as to the entire complaint, was properly refused, as there was evidence from which the jury could infer that the defendant knew of the ditch, and negligently failed to fill it, or negligently permitted it to be there.

Charges 2, 3, 4, 5, 6, and 7 requested a finding for the defendant upon the different counts. This form of charge has been repeatedly condemned by this court, unless the defendant was entitled to a verdict under the entire complaint.- — Bessemer Co. v. Tillman, 139 Ala. 464, 36 South. 40; L. & N. R. R. v. Sandlin, 125 Ala. 585, 28 South. 40. We do not mean to hold, however, that the -defendant was entitled to the general charge as to any of the counts, had it been properly framed.

Charge 8, requested by the defendant, was properly refused. If not otherwise bad, it pretermits the defendant’s duty to have guarded or signaled the defect. It may not have bad actual notice of tbe ditch, or may not have been negligent in failing to discover and repair same, and yet may have been negligent in failing to discover and guard or place warnings to protect the public.

Charge 9 asserts no legal proposition and has been repeatedly condemned by this court. — Montgomery R. R. v. Smith, 146 Ala. 327, 39 South. 757; Tutwiler v. Burns, 160 Ala. 386, 49 South. 455.

The judgment of the city court is affirmed.

Affirmed.

Dowdell, C. J., and Sayre and Evans, JJ., concur.