MANNING, J.
This suit was brought by appellant, for damages for the wounds, suffering, loss of time, and expense, to which he was subjected, by a fall of about six feet in the night time, while walking in one of the public streets of Huntsville, down a precipice, or walled place, the upper part of which was on a level with the street, or foot pavement on the side thereof, and without a railing or other barrier, or any light burning near it. to prevent persons who, like him, did not know of its existence, or should not see it, from being precipitated down the descent. By the fall, it is alleged, appellant’s leg was broken, and had to be afterwards amputated; from which, and the bruises he received, resulted great pain, sickness, long confinement, and expense, and also the inability and injury of being a cripple for life. It is alleged that it was defendant’s duty to have had such railing, barriers, or other safeguards, erected along said precipice, to prevent accidents thereby; that it had existed in the dangerous condition it was then in, for a year or more before appellant’s fall; and that, notwithstanding its knowledge of such a condition, defendant negligently failed and omitted to perform said duty, or otherwise to cause the dangerous nuisance to be abated. This is the substance of the complaint.
The charter of a municipal corporation is a public act, of which the courts take judicial notice, without any recital of its provisions in the pleadings.—Smoot v. Wetumpka, 24 Ala. 121; Case v. Mayor of Mobile, 30 Ala. 538; Perryman v. Greenville, 51 Ala. 510.
In March, 1870, a statute was passed, entitled “An act to establish a new charter for the city of Huntsville.” The name given to the corporation is, “The Mayor and Aldermen [493] of the City of Huntsville.” According to section 2, “the corporate limits . . . embrace an area of land two miles square, whose centre shall be the centre of the public square in said city,” <fec. Section 4 provides, “that the government of said corporation shall consist of, and its corporate power shall be exercised by, a mayor and eight aldermen, who shall be elected,” &c.; and section 17 enacts (among many other important provisions), that they “shall have power and authority to declare, prevent, and remove nuisances ; . . . to erect and repair bridges; to construct drains and sewers, and keep them in repair; . . to keep in repair the streets, avenues, and alleys of said city ; to discontinue and close them, when expedient; to widen or change their direction, and open new ones; ... to pave, grade, macadamize, or otherwise improve any street, or part thereof; to provide the means therefor, if deemed expedient and proper, by assessments on the owners of property to be benefitted thereby, or by assessment on the property to be benefitted, and to collect and enforce such assessments as other taxes; . . .to provide for the punishment, by fine, or fine and imprisonment, or by imprisonment, or by work on the streets, or other work of the city, of any breach of the laws, by-laws, ordinances of the corporation; . . . and to pass all such laws, by-laws, and ordinances, as may be necessary or proper to execute the powers in this charter granted, as may be expedient for good government of the city.” — Acts 1869-70, 412.
These, and many other provisions in the charter, show that Huntsville was a city of consequence, and that it was endowed, as such, with ample powers and faculties, and an organization for the exercise of them, by which it was designed to make this city, in a very large degree, independent, in its internal administration, of State and county officials. Was it so charged by this legislation with the duty of keeping the streets in order, as to be liable to appellant for the consequences of the accident to him? The circuit judge was of the opinion, that it was not. He sustained the demurrer to the complaint — not on the ground that its averments were defective, but, as the judgment-entry recites, “because there is no duty imposed upon the defendant, to keep the streets of said city in repair, or to put up guards or barriers, in cases, and under circumstances, as alleged in the complaint.” We shall not, therefore, scrutinize the counts in the complaint, to see whether or not they could be made better by amendment. The declaration in Smoot v. Wetumpka, 24 Ala. 116, might be advantageously consulted, in the preparation of such a complaint.
[494] Probably, it was under tbe influence of the case just referred to, that the circuit' judge reached the conclusion, that the city was not liable in the present cause. The particular duty of keeping the streets in repair uras enjoined on the municipal authorities of Wetumpka, in express terms; ample authority to raise the means of doing so was conferred upon them, while the inhabitants of the town were, at the same time, expressly exempted from working on the public roads of the county. Some stress was laid by the court on these facts; and the case did not require more to be said than the court did say, to-wit: “Where-a particular duty is positively enjoined, and no discretion is vested in the corporation, as to whether it will or will not perform it, . . . and, having the means for performing this duty, the corporation willfully or negligently fails to perform it, in consequence of which failure an extraordinary injury happens to an individual, we see no reason why an action will not lie as well against it, as against an individual, for a similar omission of duty that works an injury to another.”—24 Ala. 121.
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MANNING, J.
This suit was brought by appellant, for damages for the wounds, suffering, loss of time, and expense, to which he was subjected, by a fall of about six feet in the night time, while walking in one of the public streets of Huntsville, down a precipice, or walled place, the upper part of which was on a level with the street, or foot pavement on the side thereof, and without a railing or other barrier, or any light burning near it. to prevent persons who, like him, did not know of its existence, or should not see it, from being precipitated down the descent. By the fall, it is alleged, appellant’s leg was broken, and had to be afterwards amputated; from which, and the bruises he received, resulted great pain, sickness, long confinement, and expense, and also the inability and injury of being a cripple for life. It is alleged that it was defendant’s duty to have had such railing, barriers, or other safeguards, erected along said precipice, to prevent accidents thereby; that it had existed in the dangerous condition it was then in, for a year or more before appellant’s fall; and that, notwithstanding its knowledge of such a condition, defendant negligently failed and omitted to perform said duty, or otherwise to cause the dangerous nuisance to be abated. This is the substance of the complaint.
The charter of a municipal corporation is a public act, of which the courts take judicial notice, without any recital of its provisions in the pleadings.—Smoot v. Wetumpka, 24 Ala. 121; Case v. Mayor of Mobile, 30 Ala. 538; Perryman v. Greenville, 51 Ala. 510.
In March, 1870, a statute was passed, entitled “An act to establish a new charter for the city of Huntsville.” The name given to the corporation is, “The Mayor and Aldermen [493] of the City of Huntsville.” According to section 2, “the corporate limits . . . embrace an area of land two miles square, whose centre shall be the centre of the public square in said city,” <fec. Section 4 provides, “that the government of said corporation shall consist of, and its corporate power shall be exercised by, a mayor and eight aldermen, who shall be elected,” &c.; and section 17 enacts (among many other important provisions), that they “shall have power and authority to declare, prevent, and remove nuisances ; . . . to erect and repair bridges; to construct drains and sewers, and keep them in repair; . . to keep in repair the streets, avenues, and alleys of said city ; to discontinue and close them, when expedient; to widen or change their direction, and open new ones; ... to pave, grade, macadamize, or otherwise improve any street, or part thereof; to provide the means therefor, if deemed expedient and proper, by assessments on the owners of property to be benefitted thereby, or by assessment on the property to be benefitted, and to collect and enforce such assessments as other taxes; . . .to provide for the punishment, by fine, or fine and imprisonment, or by imprisonment, or by work on the streets, or other work of the city, of any breach of the laws, by-laws, ordinances of the corporation; . . . and to pass all such laws, by-laws, and ordinances, as may be necessary or proper to execute the powers in this charter granted, as may be expedient for good government of the city.” — Acts 1869-70, 412.
These, and many other provisions in the charter, show that Huntsville was a city of consequence, and that it was endowed, as such, with ample powers and faculties, and an organization for the exercise of them, by which it was designed to make this city, in a very large degree, independent, in its internal administration, of State and county officials. Was it so charged by this legislation with the duty of keeping the streets in order, as to be liable to appellant for the consequences of the accident to him? The circuit judge was of the opinion, that it was not. He sustained the demurrer to the complaint — not on the ground that its averments were defective, but, as the judgment-entry recites, “because there is no duty imposed upon the defendant, to keep the streets of said city in repair, or to put up guards or barriers, in cases, and under circumstances, as alleged in the complaint.” We shall not, therefore, scrutinize the counts in the complaint, to see whether or not they could be made better by amendment. The declaration in Smoot v. Wetumpka, 24 Ala. 116, might be advantageously consulted, in the preparation of such a complaint.
[494] Probably, it was under tbe influence of the case just referred to, that the circuit' judge reached the conclusion, that the city was not liable in the present cause. The particular duty of keeping the streets in repair uras enjoined on the municipal authorities of Wetumpka, in express terms; ample authority to raise the means of doing so was conferred upon them, while the inhabitants of the town were, at the same time, expressly exempted from working on the public roads of the county. Some stress was laid by the court on these facts; and the case did not require more to be said than the court did say, to-wit: “Where-a particular duty is positively enjoined, and no discretion is vested in the corporation, as to whether it will or will not perform it, . . . and, having the means for performing this duty, the corporation willfully or negligently fails to perform it, in consequence of which failure an extraordinary injury happens to an individual, we see no reason why an action will not lie as well against it, as against an individual, for a similar omission of duty that works an injury to another.”—24 Ala. 121.
But the court did not say that it was only in such a case that a municipal corporation would be liable to one so injured. The subject has been studied, and the judicial decisions in respect to it examined, and the results expressed in caréfully considered language, by Judge Dillon, in his excellent work on Municipal Corporations. After showing that the same law is not applicable to counties and their subdivisions, called in New England “towns,” and like quasi-corporations, he says (§ 789): “It may be fairly deduced from the many cases on this subject referred to in the notes, that, in the absence of an express statute, imposing the duty, and declaring the liability, municipal corporations proper, having the powers ordinarily conferred upon them, respecting bridges, streets, and side-walks, within their limits, owe to the public the duty to keep them in a safe condition for use in the usual mode by travellers, and are liable in a civil action for special injuries resulting from neglect to perform this duty. Such a duty and liability are considered to exist, without a positive statute, when the following conditions concur : 1. The place in question, whether bridge, side-walk, or street, must be one which it is the duty of the corporation to repair, or leeep in a safe condition ; and this duty (to keep in repair), if not specifically enjoined, must arise upon a just construction of the charter or statutes applicable to the corporation. 2. This duty or burden must appear, upon a fair view of the charter, or statutes, to be imposed or rest upon the municipal corporation as such, and not upon it as an agency of the State, or upon its officers as independent pub-[495] lie officers. (This, however, in general, appears sufficiently,when the municipality sought to be made liable exists under a special charter, or general act, which confers upon it peculiar powers and privileges as respects streets, their control and improvement, not possessed throughout the State at large under the general enactments concerning ways.) 3. The poiuer to perform the duty of maintaining the streets in a safe condition, by authority to levy taxes, or impose local assessments for the purpose, must be (as it almost always is) conferred upon the corporation. . . . Where the duty to repair is not specifically enjoined, and an action for damages caused by defective streets is not expressly given, still both the duty and liability, if there be nothing in the charter or legislation to negative the inference, has often, and, in our judgment, properly, been deduced from special powers conferred Upon the corporation, to open, grade, improve, and ececlvsively control public streets within their limits, and from the means which, by taxation and local assessments, or both, the law places at its disposal, to enable it to discharge this duty.”
These long extracts are made because of the evident pains taken by the learned author, to state the doctrine, which is the result of the decisions on the subject, in its exact extent, and with its just qualifications, in words selected with a judicial care for accuracy.
In the case of Robbins v. Chicago (2 Black, 422), in the Supreme Court of the United States, it is said: “It is well settled, that a municipal corporation, having the exclusive care and control of the streets, is obliged to see that they are kept safe for the passage of persons and property, and to abate all nuisances that may be dangerous; and if this plain duty is neglected, and any one is injured, it is liable for the damages sustained. The corporation has, however, a remedy over against the party that is in fault, and has so used the streets as to produce the injury, unless it was also a wrongdoer.” This was a case, in which, also, a person was injured by a fall that might have been prevented, if railings had been put up by the property-holder who had caused the excavation to be made.
It is quite plain, upon examining the provisions of the charter of Huntsville, in the light of the law as above set forth, that the city is liable for all the damages sustained by appellant, if the precipice referred to had existed in its unguarded and dangerous condition, within observation by the people generally, for such length of time as must have enabled it to be known, and appellant did not bring the disaster [496] upon himself, by his own culpable negligence in not avoiding an obvious peril.
The circuit judge erred in his ruling sustaining the demurrer; and the judgment must be reversed, and the cause remanded.