Mayor of Birmingham v. Lewis
92 Ala. 352
Ala.
1890
Check Treatment
WALKER, J.

In the year 1885 the authorities of the city of Birmingham constructed a storm water sewer extending from the eastern portion of the city at Twenty-seventh street down Second alley, which bisects the city blocks between Second and Third avenues,, to the east side of Eighteenth street, where the sewer turns in a southwesterly direction and crosses that street diagonally. The sewer was about three, feet across and from four to six feet deep, as variously stated by different witnesses. It was covered over to the surface level except that an opening into it was left on the east side of Eighteenth street just west of a wooden bridge which spanned said sewer at its intersection with the side-walk. Said hole or opening was about three feet by four feet across and extended to the bottom of the sewer. The upper edges of the walls of the opening were on a level with the surface of the street, and there were no railings or other guards around it. In fact the pit was so situated that travellers on the street might readily fall into it and there was nothing at all to warn them of the danger. Some of the witnesses stated that the bridge covered the entire width of the side-walk, so that the part of the opening next to the side-walk was in the gutter or drain of the street; while others stated that the bridge was narrower than the side-walk and that the opening into the sewer encroached upon the side-walk, so that it was immediately in the path of pedestrians. Appellee lived in a house on the northeast corner of said Second alley and Eighteenth *355•street. She had been living there several weeks prior to the accident which was the occasion of this suit. On the opposite side of the street but south of said Second alley was the store of one Burney. On the night of February 21st, 1889, appellee went across the street to make a purchase at said Burney’s store, and in returning to the house where she lived, she fell into said opening and had one of her legs broken between the ankle and the knee. There was no light vat said bridge or near it. There was no contradiction of appellee’s statement that during the .time she had lived at said house she had not been on the street except at night and that she did not know where the opening into the sewer was. As a result of said injury appellee was confined to her bed nine weeks. There, rvas evidence that she had suffered great pain; that at the time of the trial, nearly a year after the injury was received, she could not walk without limping, and that the injury might be permanent. The place of said accident was on one of the principal streets of Birmingham and was very near the business center of the city. The city authox-ities had all along known of said opening or hole and had been notified of the fact that one or two other persons had fallen into it.

A municipal corporation disregards one of its plainest duties when it permits an unguarded pit such as that above described to remain in a city thoroughfare, where of necessity it is a constant peril to travellers. In the present case the negligence of the authorities in this regard was obvious and glaring. City Council of Montgomery v. Wright, 72 Ala. 411; Albritten v. Mayor and Aldermen of Huntsville, 60 Ala. 486; Bradford v. Mayor and City Council of Anniston, decided at present term, supra, p. 349; Elliott on Roads and Streets, 452. The excuse offered for the negligence is disclosed by the exceptions reserved to the refusal of the court to admit evidence to show that the city did not have the funds to improve Eighteenth street, that it had levied the full rate of taxation allowed by law, and had other expensive corporate duties to perform, and that it did not have the money or means to grade or repair Eighteenth street or put it in a condition that would admit of the closing of said opening. It appeared without contradiction that said street had for a number of years been opened, worked and put in condition for public travel and cinders put on the sidewalks; though in the locality where the accident occurred the street was ixot graded or improved as were other streets in the city. The case was tried by the court without a jury and if the proposed proof had been admitted it would not properly have changed the result. We have not discovered any casein *356which a municipal corporation has been held relieved of responsibility for damages resulting from a defect in the street of a city because of the insufficiency of the means at the disposal of the authorities for purposes of street improvements or repairs. In several cases, in which it was held that the evidence did not show such insufficiency, it was suggested that damages for an injury similar to the one shown in this case are not recoverable of a municipal corporation which has no means at all of raising a corporate fund to improve or repair its streets. The ground of such non-liability is that that can not be a legal duty which the law does not permit to be executed.—Erie v. Schwingle, 22 Pa. St. 384; s. c. 60 Am. Dec. 87; Hinen v. Lockpott, 50 N. Y. 236. In this case it was not proposed to be shown that the city authorities had exercised the power conferred by section 24 of the amended city charter (Acts 1882-3, p. 318) to require each male inhabitant of the city between the ages of eighteen and fifty years to work upon the streets five days in each year, or in lieu of such work to pay into the city treasury a sum not. exceeding five dollars to be applied exclusively to the improvement of the streets, and that the means so raised had been properly applied; nor was it proposed to be shown that the city authorities had exercised, for the improvement or repair of Eighteenth street, the ample powers conferred by the act which was sustained by the decision of this court in the case of Mayor and Aldermen of Birmingham v. Klein, 89 Ala. 461. The powers conferred by those acts constitute resources for street improvements and repairs. The offer of proof not having gone to the extent of showing that the city authorities had exhausted the means at their command for the performance of the duty imposed, the evidence was immaterial and for that reason was properly excluded.—Weed v. Ballston Spa, 76 N. Y. 329; Shelby v. Claggett, 22 N. E. Rep. 407. Furthermore, inability to improve or repair Eighteenth Street would not relieve appellant in this case. The hole into the sewer should never have been allowed to remain in the street unless the peril of its existence there could be obviated by the erection of guards around it, or by the placing of signals to give due warning of the danger. No excuse at all is suggested for the failure to provide any such safeguards. The city engineer stated on the trial that said opening was necessary in order to drain Eighteenth Street, and that it was arranged in the only practicable way possible as the street was not graded or filled on that side. He did not,, however, pretend to say that the safety of the public could not have been provided for by barriers around the excavation or in some other way, or that the pit did not render the street un*357safe for public use. A city has no more right to plan or create an unsafe and dangerous condition of one of its public streets than it has to plan or create a public nuisance.—Gould v. Topeka, 32 Kansas, 485; 4 Dillon on Mun. Corp., § 1016, n. 3. The dangers incident to the unguarded condition of the opening into the sewer could have been provided against though the city did not have the means to improve or to repair the street.

In the amount of damages awarded to appellee by the judgment of the Circuit .Court we discover nothing of which appellant has just reason to complain. It may be that in a case like this one vindictive 'damages are not recoverable against a municipal corporation. If, however, in consequence of the negligence of the city authorities personal injuries are suffered involving physical pain or loss of health, clue compensation therefor is not to be denied because of the public character of the corporation. In a note to section 1020 of Dillon on Municipal Corporations, where the question of exemplary damages in such cases is considered, this expression from an English case is quoted with approval: “Undoubtedly health is the greatest of all physical blessings; and to say that when it is utterly shattered no compensation is to be made for it, is really perfectly extravagant.” The impossibility in such cases of definitely measuring the damages by a money standard is no reason for denying to the injured person the only relief the courts can afford. The authorities recognize bodily pain and disfigurement as items for which compensation is to be made in the assessment of damages for personal injuries.—Barbour County v. Horn, 48 Ala. 566-577; Mason v. Ellsworth, 32 Me. 271; 5 Am. & Eng. Encyc. of Law, 42; 2 Sedg. on the Measure of Damages, (7th, Ed.) 543, n. (a). In view of the character of the injury shown to have been suffered by appellee the damages assessed by the Circuit Court can not be regarded as excessive.

Affirmed.