McCLELLAN, J.
The administratrix of Robert W. Benton, deceased, instituted this action against the city of Montgomery to recover damages for his death. About 7 o’clock p. m., December 17, 1912, he was found prone and unconscious on the paved floor of the underpass leading from a point on Commerce street, in the city of Montgomery, under the street car company’s track which turns above the underpass across Commerce street toward the Louisville & Nashville Railroad station to the south, to the wharf on the bank of the Alabama river. He never regained consciousness, and died on December 18, 1912. At the instance of the defendant the city of Montgomery, the court awarded the city a conditional nonsuit; the condition being that the nonsuit should be effective unless the Montgomery Light & Traction Company, the owner and operator of the mentioned street railway, was made a party defendant in accordance with the provisions of Code, §§ 1273, 1274. The death of Benton is attributed by the plaintiff to negligent act, failure, or omission in leaving the place and its environs, in Commerce street at or adjacent to the place where the street railway crosses the underpass, so unguarded or without warning as that intestate fell into the underpass and was thereby injured. The underpass was an existing structure when the street railway constructed its track across it; and there is evidence that the guarding < walls along the underpass rising from its base or floor were
renioved by the street railway company’s corporate predecessor in rights, and. had not been restored or some substitute therefor provided when Benton met with fatal injury. The circumstances shown in the evidence required the submission to the jury’s consideration and decision of this issue: Whether he was injured by falling into the underpass below the street level, or whether he was assaulted and his body thrown into the underpass below the street’s level.
[1]
In City of Birmingham v. Carle, 191 Ala. 539, 68 South. 22, L. R. A. 1915F, 797; Bloom v. City of Cullman, 73 South. 85,
and City of Birmingham v. Muller, 73 South. 30,
this court considered and construed Code, §§ 1273, 1274. In accordance with the provisions of these statutes, as they have been interpreted here, the court did not err in requiring the joinder of the street railway company as a defendant. At that stage of the cause it sufficiently appeared that the city’s liability (if such there was) was secondary and conditional, as these statutes provided that the liability asserted was, if it existed, within the class denominated “b” in the opinion in City of Birmingham v. Carle, and in the Bloom Case, supra.
[2]
Code, § 1275, is as follows:
“Statements, Claims, or Demands for Injury
Filed.—tSo recovery shall be had against any city or town on a claim for personal injury received unless a sworn statement be filed with the clerk, by the party injured, or his personal representative in case of his death, stating substantially the manner in which the injury was received -and the day and time, and the place where the accident occurred, and the damages claimed.”
This statute creates as a condition precedent to a recovery from any city or town of damages for personal injuries receivec' the filing of the statement described in the statute. The verified statement filed with the clerk of the city of Montgomery expressly recited that the injury on which the claim was predicated was suffered on December 18, 1912; whereas the undisputed proof showed that Benton was injured the day before, December 17, 1912. This conclusion is uneseapable under the following adjudications delivered here in interpretation and in application of the statute quoted. Bland v. Mobile, 142 Ala. 142, 37 South. 843; Brannon v. City of Birmingham, 177 Ala. 419, 50 South. 63; McKinnon v. City of Birmingham, 71 South. 463.
in the last-cited decision this court noted the dictum, introduced into the opinion in the Brannon Case, supra, with respect to the necessity to 'recite in the statement exacted by the statute whether the injury was received in the daytime or the nighttime. Otherwise the authority of Bran-non’s Case is unimpaired. The lawmakers wrote very plainly in this statute. Two sessions of the Legislature have since convened; and no change of which we are aware has been made in this statute. To present a claim for an injury as being suffered on one day when it was suffered on another day cannot, in view of the plain terms of the statute, be held to be a substantial compliance therewith. If it should be regarded as a sufficient compliance to give notice of a claim as having arisen on the next day after it in fact had arisen, the clear mandate of the statute that the day v should be given would be unjustifiably avoided. A difference, though of one day only, is a difference which, if accepted as sufficient, would preclude the application of the statute in cases where the difference was measurable by weeks, or by months within limitations otherwise provided with respect to actions against municipalities. The purpose of the statute’s enactment is to accord the city authorities the “opportunity to investigate and adjust claims made against the city, without the expense of litigation.” Brannon’s Case, supra. That a city may rely for its action, and so govern it, in refusing payment or adjustment of a claim as made upon the express recitals set forth by the claimant under oath, cannot be doubted. In this instance it is possible the city authorities may have declined payment or adjustment of the claim as made because of special, related circumstances that were present on the date given in the statement filed with the city clerk. It resulted from the failure to make a proper presentation of the claim in question that the city of Montgomery was entitled to the general affirmative charge, and, in consequence, that errors, if any, committed by the trial court in respect of the city’s liability were without injury to the plaintiff in so far as her case against the city was concerned. Bienville Water Co. v. Mobile, 125 Ala. 178, 27 South. 781; Adams v. Corona Coal Co., 183 Ala. 127, 62 South. 536; Merriweather v. Sayre Min. Co., 182 Ala. 665, 62 South. 70; Brammer v. Pettyjohn, 154 Ala. 618, 45 South. 646.
[3]
The case was submitted to tire jury on the issues consequent upon the averments contained in count B. The report of the appeal will reproduce that count. It is manifest that the breach of duty declared on in this count was with respect to the failure to install some guard or warning in the space intervening between the track of the street railway, on its east side, and the point where the north wall of the underpass was removed in the process of constructing the railway and its trestle over the underpass. In B. R., L. & P. Co. v. Jones, 153 Ala. 157, 163, 164, 45 South. 177, following pertinent pro> nouncement made in Glass’ Case, 94 Ala. 581, 588, 10 South. 215, this court confined the right of a pedestrian to the use of a street as a street whereon a street railway had been' laid to cases where the railway is flush with the street’s surface, relegating to the category of a trespasser a pedestrian who moved upon a railway (otherwise than in crossing it) that was not so constructed in the street as to be flush with and usable as a part of the street’s surface.
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McCLELLAN, J.
The administratrix of Robert W. Benton, deceased, instituted this action against the city of Montgomery to recover damages for his death. About 7 o’clock p. m., December 17, 1912, he was found prone and unconscious on the paved floor of the underpass leading from a point on Commerce street, in the city of Montgomery, under the street car company’s track which turns above the underpass across Commerce street toward the Louisville & Nashville Railroad station to the south, to the wharf on the bank of the Alabama river. He never regained consciousness, and died on December 18, 1912. At the instance of the defendant the city of Montgomery, the court awarded the city a conditional nonsuit; the condition being that the nonsuit should be effective unless the Montgomery Light & Traction Company, the owner and operator of the mentioned street railway, was made a party defendant in accordance with the provisions of Code, §§ 1273, 1274. The death of Benton is attributed by the plaintiff to negligent act, failure, or omission in leaving the place and its environs, in Commerce street at or adjacent to the place where the street railway crosses the underpass, so unguarded or without warning as that intestate fell into the underpass and was thereby injured. The underpass was an existing structure when the street railway constructed its track across it; and there is evidence that the guarding < walls along the underpass rising from its base or floor were
renioved by the street railway company’s corporate predecessor in rights, and. had not been restored or some substitute therefor provided when Benton met with fatal injury. The circumstances shown in the evidence required the submission to the jury’s consideration and decision of this issue: Whether he was injured by falling into the underpass below the street level, or whether he was assaulted and his body thrown into the underpass below the street’s level.
[1]
In City of Birmingham v. Carle, 191 Ala. 539, 68 South. 22, L. R. A. 1915F, 797; Bloom v. City of Cullman, 73 South. 85,
and City of Birmingham v. Muller, 73 South. 30,
this court considered and construed Code, §§ 1273, 1274. In accordance with the provisions of these statutes, as they have been interpreted here, the court did not err in requiring the joinder of the street railway company as a defendant. At that stage of the cause it sufficiently appeared that the city’s liability (if such there was) was secondary and conditional, as these statutes provided that the liability asserted was, if it existed, within the class denominated “b” in the opinion in City of Birmingham v. Carle, and in the Bloom Case, supra.
[2]
Code, § 1275, is as follows:
“Statements, Claims, or Demands for Injury
Filed.—tSo recovery shall be had against any city or town on a claim for personal injury received unless a sworn statement be filed with the clerk, by the party injured, or his personal representative in case of his death, stating substantially the manner in which the injury was received -and the day and time, and the place where the accident occurred, and the damages claimed.”
This statute creates as a condition precedent to a recovery from any city or town of damages for personal injuries receivec' the filing of the statement described in the statute. The verified statement filed with the clerk of the city of Montgomery expressly recited that the injury on which the claim was predicated was suffered on December 18, 1912; whereas the undisputed proof showed that Benton was injured the day before, December 17, 1912. This conclusion is uneseapable under the following adjudications delivered here in interpretation and in application of the statute quoted. Bland v. Mobile, 142 Ala. 142, 37 South. 843; Brannon v. City of Birmingham, 177 Ala. 419, 50 South. 63; McKinnon v. City of Birmingham, 71 South. 463.
in the last-cited decision this court noted the dictum, introduced into the opinion in the Brannon Case, supra, with respect to the necessity to 'recite in the statement exacted by the statute whether the injury was received in the daytime or the nighttime. Otherwise the authority of Bran-non’s Case is unimpaired. The lawmakers wrote very plainly in this statute. Two sessions of the Legislature have since convened; and no change of which we are aware has been made in this statute. To present a claim for an injury as being suffered on one day when it was suffered on another day cannot, in view of the plain terms of the statute, be held to be a substantial compliance therewith. If it should be regarded as a sufficient compliance to give notice of a claim as having arisen on the next day after it in fact had arisen, the clear mandate of the statute that the day v should be given would be unjustifiably avoided. A difference, though of one day only, is a difference which, if accepted as sufficient, would preclude the application of the statute in cases where the difference was measurable by weeks, or by months within limitations otherwise provided with respect to actions against municipalities. The purpose of the statute’s enactment is to accord the city authorities the “opportunity to investigate and adjust claims made against the city, without the expense of litigation.” Brannon’s Case, supra. That a city may rely for its action, and so govern it, in refusing payment or adjustment of a claim as made upon the express recitals set forth by the claimant under oath, cannot be doubted. In this instance it is possible the city authorities may have declined payment or adjustment of the claim as made because of special, related circumstances that were present on the date given in the statement filed with the city clerk. It resulted from the failure to make a proper presentation of the claim in question that the city of Montgomery was entitled to the general affirmative charge, and, in consequence, that errors, if any, committed by the trial court in respect of the city’s liability were without injury to the plaintiff in so far as her case against the city was concerned. Bienville Water Co. v. Mobile, 125 Ala. 178, 27 South. 781; Adams v. Corona Coal Co., 183 Ala. 127, 62 South. 536; Merriweather v. Sayre Min. Co., 182 Ala. 665, 62 South. 70; Brammer v. Pettyjohn, 154 Ala. 618, 45 South. 646.
[3]
The case was submitted to tire jury on the issues consequent upon the averments contained in count B. The report of the appeal will reproduce that count. It is manifest that the breach of duty declared on in this count was with respect to the failure to install some guard or warning in the space intervening between the track of the street railway, on its east side, and the point where the north wall of the underpass was removed in the process of constructing the railway and its trestle over the underpass. In B. R., L. & P. Co. v. Jones, 153 Ala. 157, 163, 164, 45 South. 177, following pertinent pro> nouncement made in Glass’ Case, 94 Ala. 581, 588, 10 South. 215, this court confined the right of a pedestrian to the use of a street as a street whereon a street railway had been' laid to cases where the railway is flush with the street’s surface, relegating to the category of a trespasser a pedestrian who moved upon a railway (otherwise than in crossing it) that was not so constructed in the street as to be flush with and usable as a part of the street’s surface. The doctrine of
these -decisions entirely justified the trial court ’in its rulings to the effect that, if Benton went upon and was using, when he fell (if so he did therefrom), the trestle of the railway company to cross the street, he was a trespasser, and was not entitled jto recover ; there being no evidence or contention that the company knew he was, or was about to become, there imperiled. In short, by properly invoked action of the court, the plaintiff’s possible lead to a recovery against the railway company was restricted to the breaeh of duty with respect to the unguarded space intervening between the railway’s east side and the remaining north wall of the underpass.
[4]
Plea 2 interposed by the railway company was not subject to the demurrer. The report of the appeal will contain it. It predicates contributory negligence of the act of Benton in taking a dangerous course over the underpass, when a safe course was open and known to him. It is essential that pleas of this character should carry the allegation that the party charged knew, or by the exercise of ordinary care would have known, that one way was dangerous and one way safe, and that, in choosing, he took the dangerous course, thereby contributing to his injury. City of Birmingham v. Carle, 191 Ala. 551, 68 South. 22, L. R. A. 1915F, 797. The only ground of the demurrer presenting a debatable objection to the plea is that numbered 3, which points the criticism that the plea does not aver that the unsafe condition of the (alleged) dangerous course taken by Benton was apparent to him if he was exercising such care as an ordinary person would have exercised under the circumstances defined in the pleading. The plea’s averments in that particular more than answer the demurrer’s criticism. It avers that the unsafe condition was visible to all persons at any hour of the day or night, thus including all persons, whatever the measure of their prudence or care.
[5-7]
While a pedestrian has the right to cross a street in which a railway is laid above the street’s surface, yet in exercising this right he must bring to bear a degree of care and prudence referable to the changed situation wrought by the presence of the railway, so constructed within the confines of the street, provided, of course, he is aware, or reasonable prudence would so advise an ordinarily careful man, that the railway was so located. Charge 2, refused to plaintiff, purported to have the stated right declared to the jury. The charge was abstract. There was no evidence that Benton was, when injured, undertaking to cross the street. Non constat, he might have been moving along the railway. Furthermore, such an instruction, without having incorporated in it the rule of added care stated, possessed a possible misleading tendency that justified the court in refusing it. Again, in special charges given at plaintiff’s instance the jury were advised of the right asserted in refused charge 2. The refusal of charges 5 and 8 requested for plaintiff cannot be held for error, since neither of them discriminated between the liability of the two defendants; the city of Montgomery not being, as stated, responsible in any event because of the failure to observe the statute (Code, § 1275) in presenting the claim sued on.
[8, 9]
Charge C might well have been re-, fused as being incomplete; but it contains a sufficient qualification with reference to Benton’s presence on the trestle to avert the implication of error in giving it. Charge D given to the jury at the instance of the railway company was affirmatively faulty and should have been refused. To give it was error. It reads:
. “The court charges the jury that, if there was light from the street lights or otherwise so that any clangorous or unsafe excavation in Commerce street would have been revealed by said lights, and they shall believe from the evidence that plaintiff’s intestate knew the place in question or had reason to believe it did exist, then it was his duty under the law to be on the lookout, to watch, to detect, and avoid it, and if he failed so to do, and thereby contributed to his injury, plaintiff cannot recover.”
In order to conclude to Benton’s contributory negligence, barring a recovery by this plaintiff, he must have omitted to exercise ordinary care under the circumstances. This charge, in one vital alternative, hypothesized his guilt of contributory negligence upon the mere fact that Benton had reason to believe the dangerous place existed; whereas a pedestrian, under the circumstances here disclosed, is not guilty of contributory negligence unless in the exercise of ordinary prudence under the circumstances he would have known of the existence of the danger in the way. The charge is also susceptible of an interpretation that would make it declare a higher measure of care with respect to inspection and watchfulness than the law exacts of one who has only general knowledge of a dangerous way, or that he is in the neighborhood, on his route, of such dangerous way.
[10]
There is no fault in charge E given at the company’s request, if “apparent” is accorded the meaning synonymous with “obvious.”
Charges M and N given at the company’s request conform to what has been heretofore ruled as upon the authority of B. R., L. & P. Co. v. Jones, supra. There was no error in giving them. ■ ,
For the error stated, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.