96 So. 214 | Ala. | 1923
The appeal is on the record, without bill of exceptions. The plaintiff, appellee, was awarded judgment for personal injuries resulting from his stepping or falling from a "sidewalk" into a "hole or cut" immediately adjacent to or attinging the "sidewalk." The case was submitted to the jury on the averments of count 5. The main insistence for error is rested upon the action of the court in overruling demurrer to count 5.
A condition to the right to sue a municipality of the class to which Birmingham belongs is that, within 90 days "from the receipt of" injury, the party injured shall file with the city clerk a sworn statement descriptive of the injury, etc., and giving the place of residence of the party injured. Gen. Acts 1915, § 12, p. 298. The act of complying with this requisite to enter suit is a fact that may be alleged as such. The act required by the statute is not an element of an injured party's cause of action, but is a condition to his right to implead the municipality upon his cause of action. Whether the adequately averred fact of compliance with the stated statutory prescription is sustained is to be determined from the evidence; the burden to support the allegation being upon the plaintiff. In Grambs v. City of Birmingham,
The amendment of the complaint, through the addition of a count (more than 12 months after the suit was instituted) in which the cause or means of plaintiff's injury was differently described from that to which plaintiff's injury was ascribed in the original complaint, did not introduce a new cause of action for the same injury; the amended count relating back to the institution of the suit, and avoiding the intervention of the statute of limitations of one year. Code, § 5367; Ala. Cons. Iron Co. v. Heald,
The count (5) under review was not rendered faulty by reason of its failure to negative contributory negligence on the part of the plaintiff, a pedestrian. It is manifest that the count does not disclose on its face that plaintiff, on the occasion of his injury, was guilty of contributory negligence.
The last paragraph in count 5 refutes the point taken by ground 10 of the demurrer, which, it appears, was predicated of the concluding provisions of Code, § 1274.
Count 5, reproduced in the report of the appeal, does not aver, or proceed upon the theory, that plaintiff's injury was caused by a defect in the street or sidewalk over which plaintiff, a pedestrian, was moving. Its theory is that his injury was ascribable to a hole or cut in close proximity to and abutting the sidewalk, which was negligently left without warning or signal to persons using the walkway. In the oral charge the court stated a rule of municipal liability, consequent upon municipal duty to safeguard street ways from danger arising from conditions attinging a street, that consisted with the theory upon which the count (5) proceeds. The soundness and present application of the rule stated by the court in that connection is not questioned on this appeal.
The third and fourth grounds of demurrer point these objections to the sufficiency of the count (5): (a) That the defect was not averred to have existed in a public street; (b) and that the averment of defect in the public street was a mere conclusion of the pleader. Both of these grounds were inapt, for that, as already stated, the count did not assume to charge that the cause of plaintiff's injury was a result of a defect in the street or in the sidewalk.
There is no ground of demurrer efficiently taking the specific objection (Code, § 5340) that it is not averred in the count (5) that the municipality was under a duty to keep this sidewalk in reasonably safe condition for pedestrians.
The public character of the sidewalk in question was sufficiently alleged through its description as "the sidewalk, between Twentieth and Twenty-First street, Ensley avenue, Ensley, in the city of Birmingham, Ala., along which the public was accustomed to pass." In common parlance a sidewalk is the part of a street assigned to the use of pedestrians. 36 Cyc. p. 440; State v. Berdetta,
The only remaining ground of demurrer sufficiently specific to require consideration is the seventh, which reads:
"(7) For that it fails to appear from the averments of said count that before the injuries complained of the governing body of the defendant had notice of the existence of the alleged defect, causing the injury complained of, for a sufficient time to have had it remedied, or that the alleged defect had existed for such length of time as that such notice was constructively given to said body."
The count is, in fact, silent in the particular noted in the quoted ground of the demurrer. The count (5) undertakes to set forth a cause of action in the category denominated (a) in the construction this court gave Code, § 1273, in the comparatively recent pronouncement made in City of Birmingham v. Carle,
The recent decision of City of Montgomery v. Ferguson,
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. *308