City of Montgomery v. Ferguson , 207 Ala. 430 ( 1922 )

Appellee, a young man 18 years of age, enlisted in the army, and in January, 1921, while en route to the aviation camp, at which he had been stationed, fell into a railroad cut, which crosses the highway in the city of Montgomery known as Bell street. Upon filing claim with the city authorities, the name of the receiver of the Montgomery Light Traction Company was furnished to the plaintiff by the city, and such receiver was joined as a defendant in the suit.

There is a bridge across this cut, but its width does not equal that of the street, leaving a space of about 4 feet between the street car trestle and the railing of the foot passage bridge. This space was unguarded. The accident occurred at night, and the evidence is without dispute that at the place of the accident it was dark; the arc light at that end of the bridge not burning.

The evidence for the plaintiff tended to show that, while walking along the street toward the aviation depot, he stepped into this open space and received very serious injuries. He had never been in the city of Montgomery before, and, indeed, any city of this size. He had reached the city just the day before the accident, and the evidence is without conflict that he was wholly ignorant of this defect in the street, and knew nothing of the danger. There was no contention that the plaintiff was drinking, or that he was otherwise than entirely normal.

Upon the conclusion of the evidence the affirmative charge was given in favor of the receiver defendant, and there was a verdict against the city in the sum of $2,000, and from the judgment rendered thereon the city prosecutes this appeal.

The cause was tried upon counts 2 and 3, the plea of general issue and contributory negligence. Count 2 was not subject to the demurrer interposed thereto. It bears close analogy to, if indeed it is not a substantial copy of, the count considered in City of Montgomery v. Moon, 205 Ala. 590, 88 So. 751. As to the third count, it is objected that it failed to aver notice to the municipality of a defect in the street, or an averment of its existence for such period as to presume knowledge. The allegation of count 3 in this respect is "that defendants negligently allowed a defect to be and remain in said street at said point." It was held in Lord v. City of Mobile, 113 Ala. 360,21 So. 366, that such an averment imports that the defect had existed sufficiently long to have been discovered and remedied by the exercise of due care on the part of defendant.

On motion of the city, the court and jury went to the scene of the accident and viewed the place where plaintiff fell. The jury was thus afforded an opportunity for information material for a proper consideration of this cause that is not now presented to this court, and under the authorities the court is not in position to review the propriety of the giving of the affirmative charge in favor of the defendant receiver. Bellingrath v. Anderson, 203 Ala. 62,82 So. 22; Ala. Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796; Warble v. Sulzberger, 185 Ala. 603, 64 So. 361.

The defendant city of Montgomery offered two certain ordinances, to the introduction of which plaintiff offered no objection. The defendant receiver, however, interposed objection, which was sustained, and the action of the court in sustaining these objections is assigned as error. The ordinances could only be relevant as affecting the receiver of the traction company, and, should they have been admitted, for the reason above noted, this court would still not be in position to review the action of the court below in giving the affirmative charge for such defendant. Under these circumstances, it becomes unnecessary to consider the admissibility of these ordinances, as in no event could a decision of that question affect the cause upon this appeal.

Another assignment of error is rested upon the failure of the court in the oral charge to instruct the jury upon the law of contributory negligence. It has been held by this court that such failure cannot be the basis for a reviewable question on appeal. The remedy is to request special written instructions. McPherson v. State, 198 Ala. 5, 73 So. 387. It might be added, also, that such special instructions were requested and given, and in answer to the exception of counsel the court orally instructed the jury as to what constitutes contributory negligence.

The charges given at the plaintiff's request are supported by the language found used in the following authorities: Huntsville v. Phillips, 191 Ala. 529, 67 So. 664; Birmingham v. Tayloe, 105 Ala. 178, 16 So. 576; Vance v. Morgan,198 Ala. 149, 73 So. 406; City of Montgomery v. Supple, 16 Ala. App. 565,80 So. 139; City of Montgomery v. Reese, 146 Ala. 410,40 So. 760. If the language of any of these charges needed explanation under the facts of this particular case, this would render them misleading only, as the general principles therein announced are recognized as correct.

It is objected that charge 4, given at the request of plaintiff, assumes a want of knowledge of the defect on plaintiff's part. The assumption was entirely justified under the uncontradicted evidence in the case.

Charges 1, 2, and 3, given at the request of the plaintiff, state the general rule, as shown by the foregoing authorities; but it is suggested that such general rule does not extend to those portions of the street set apart for and used for railroad tracks not flush with the surface of the street. As we read the record, however, it shows that the street car track and rails were even with the street, and form a part thereof.

Charges F and E, requested by the defendant, were properly refused. They instructed against a judgment against the city alone under certain conditions, and in view of the fact that the affirmative charge had been given in favor of the defendant receiver, such a charge would have been equivalent to the affirmative charge for the city under the hypothesis therein stated.

Under the evidence here, a case of initial negligence on the part of some third person disconnected with the city was not presented. If the defendant receiver was guilty of any negligence at all (a question, as above stated, we are not in position to review), it would not have been an initial wrongdoer, but at most only jointly and co-operatively negligent with the city, and the statute (sections 1273, 1274, Code) would be without application. City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915E, 797.

Finding no error in the record, the judgment will accordingly be affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.