Excelsior Steam Laundry Co. v. Lomax

52 So. 344 | Ala. | 1910

SAYRE, J.

An .ordinance o,f the. city, of Birmingham reads thus: “Section 875. -. Leaving Horse Unattended. — Any person who .leaves any horse, mule or team standing attached, to any vehicle in the- streets without any person being in charge of said horse, mule •or team, except when being loaded and unloaded, must, •on conviction, be punished,” etc. The driver in charge of defendant’s laundry wagon.had left his team standing at the curb, and unattended, while he went into the second story of a building, 40 or 50 yards away 'and 30 feet from the sidewalk, to deliver some articles from the laundry. ■ There can be no doubt that the team was thus left standing without any person in charge within the meaning of the ordinance. Nor did the occasion fall within the spirit and reasonable interpretation of so much of the ordinance as provides an exception when the vehicle is being loaded and unloaded. The danger •of leaving teams standing in streets without any one in charge, , and the providence of the ordinance, are obvious, and the exception is not to be extended so as to include more than such temporary abandonment of the reins as is reasonably incident to the loading and unloading vehicles by the driver. Without going beyond the exigency of the case presented by the facts shown in the record, we state our opinion that the driver was not, Avithin the meaning of the ordinance, loading or unloading the defendant’s vehicle Avhen he went into the house under the circumstances testified to by him.'

There was evidence which tended to show that the driver had taken some precaution in the way of securing the horse before he went into the house. Whether, apart from his alleged violation of the ordinance, he was guilty of negligence as charged,in the first count, was, therefore, a question for the jury; and it follows that, in giving the general affirmative charge for the plaintiff, the court assumed that the ordinance alleged in the third- count of the. complaint was a valid-.ordinance in force at the time of the injury complained- of, The courts of this state do not take judicial cognizance o'f municipal ordinances. — Case v. Mobile, 30 Ala. 538; Furhman v. Huntsville, 54 Ala. 263; North Birmingham Ry. v. Calderwood, 89 Ala. 247, 7 South. 360, 18 Am. St. Rep. 105. This) although the residents within a municipality must take notice of its ordinances, and such ordinances have the force and effect of laws within the limits of the corporation. — Caldemaood?s Case, supra. The recital of the hill of exceptions is in this language: “Plaintiff here offered in evidence a copy of section 875 of the' Code of the city of Birmingham, which was received in. evidence and was as follows: (Here follows an ordinance in the language of the complaint.)” The courts, refusing to take cognizance of municipal ordinances, cannot logically assume to know the date upon which an ordinance became effective as law. The proof offered was unquestionably sufficient to establish the ordinance as subsisting at the time of the trial; but it failed to sholw that it had been adopted prior to the time at which plaintiff received her injury. The bill of exceptions distinctly states that it contains all the evidence, and we are without authority to deal with it on any hypothesis to the contrary.

Furthermore, it was for the jury to say whether the violation of the ordinance by the defendant’s agent, the driver, was the proximate cause of plaintiff’s injury. There was no such necessary causal connection in fact between the two as authorized the court to declare, as matter of law, that the alleged violation of the ordb nance was the proximate cause of the plaintiff’s injury. That was for the jury.

Reversed and remanded.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.