50 So. 919 | Ala. | 1909
— -There can he no doubt that the act or omission of the appellee in leaving for many years, within the limits of a public street in the tOAvn of Centerville, an obstruction created by sawing off a telegraph pole three feet above the ground, was such negligence as to render it liable for injury to a traveler on the street, unless the traveler was himself guilty of negligence contributory to his injury. — Postal Tel. Co. v. Jones, 133 Ala. 217, 32 South. 500.
, The important question presented is whether the appellant was, as a matter of law, guilty of contributory negligence, barring his recovery, as was ruled below. The appellant insists that the inquiry of contributory negligence vel non was for the jury. We approve the contention of the appellant. This court, in City of Montgomery v. Wright, 72 Ala. 411, 47 Am. Rep. 422, announced - conclusions which, in our opinion, control the decision of the question on this appeal. There it was contended that because the plaintiff undertook to traverse, in the nighttime, a sidewalk in a public street, Avhich had been rendered in part unsafe, and of which fact the plaintiff had knowledge,- his act Avas per se negligent, and barred a recovery for injury resulting from his falling into the “washout.” It appeared that the plaintiff was familiar with the defective condition of the sidewalk, ■and its location and character. It also appeared that the space between the inside line of the sidewalk and the nearest edge thereto of the “washout” was seven feet. It was over this seven feet the plaintiff undertook'to travel. After stating the well-known rule pivwailing with us as to when contributory negligence vel non .is, on the evidence, a question of Iuav only) and hence, for the court, and after adverting to the general doctrine that, negligence is ordinarily a mixed inquiry of laAv and
The circumstances of the case at bar require'the application of the rulings made in Wright’s Case. Here the familiarity of the appellant with the situation created by the “stump” left by the appellee in the street Avas proven conclusively. He had passed it for years. It Avas just to the side of a path leading, angling, across the street. The path Avas of ‘common use by those having the purpose to cross that street and to go ’in the direction appellant was, on the occasion, headed. Had the appellant not veered from the path, he would not have collided Avith the obstruction. It Avas undisputedly shoAvn that appellant undertook to govern his steps, so as to keep the path, by reference to a tree and telephone pole, seen by him on the same side of the street as the “stump,” and the relation of Avliich, in [joint of location, to the tree and telephone pole, were known to him. He testified that he Avalked carefully — a care and caution employed, it Avas open to inference, at least, with the view of avoiding contact with the “stump.” We cannot now, any more than could be done in Wright’s Case, ignore the fact of appellant’s familiarity with the situation in the street at that point, to the end that he can be pronounced negligent because of his act in attempting to cross the street, even in the nighttime, along the
The Smith Case, referred to ahoye in its treatment of charge 25, refused to the defendant, does not assume to declare what is ordinary care in respect to the use of defective street. It does announce the general duty on the-part of the traveler, but when such traveler has met the-obligation in the exercise of ordinary care to avoid injury from the known defect is not undertaken to be stated. Certainly it was not the purpose of the court in the Smith Gctse to overrule the Wright Case} supra,. The court erred in giving the general affirmative charge at the request of the defendant.
Plea 7 must be construed as imputing to plaintiff negligence — the nonexercise of ordinary care — in walking past the “stump,” and not in the selection of the general route across the street. To sustain the plea, it must be so found by the jury from the facts and circumstances shown by the evidence. Whether he observed due care in walking by the “stump” on the occasion is not to be controlled, alone, in conclusion by the facts that the night Avas dark and that he could not see the post before-colliding with it. They are factors, of course, to be considered in determining whether the care observed by plaintiff was of the character requisite. So interpreted, we-hold the plea to be good against the grounds of demurrer assigned.'
Plea A has no place in this case, and should be stricken on motion. Contributory negligence is the only other possible defense, aside from that made by a general traverse of the allegations of the complaint.
Reversed and remanded.