City of Anniston v. Ivey

44 So. 48, 151 Ala. 392, 1907 Ala. LEXIS 487

• Court: Supreme Court of Alabama
• Decided: May 9, 1907
• Status: Published

Opinion

McCLELLAN, J.

The appellee's intestate died, it is averred, as the result of an injury directly attributable to a defect in a public street in the city of Anniston. This defect arose from a sewer ditch across the street and the refilling thereof after the line was laid. The defendant's demurrers attack the complaint because of insufficiency of averment of negligence; and also of notice, actual or constructive, to the city of the defective condition of the street; and also on the ground that this action is not within the saving provisions of section 27 of the Code of 1896. We do not think the demurrers' were erroneously overruled.

With regard to the sufficiency of the averments, pract" ically similar counts were held good, against demurrer, by this court in the case of Lord v. Mobile, 113 Ala. 360, 21 South. 366, in which opinion it is said: “The averment that the defendant allowed a dangerous hole to remain in one of its sidewalks, as averred, imports that the defect had existed sufficiently long to have been discovered and remedied by the exercise of due care on the part of the defendant. The allegation of the defect, and of notice of its existence was sufficient.” However, the counts here seem to proceed even further than those in the Lord Cose, of which it was said their amendment made them no better.

Section 27 of the Code of 1896 unquestionably preserves this action to the personal representative. It uses the expression “person or persons, or corporation,” and we are unable to see how it can be denied application to municipalities, simply because the various condifications reveal a substitution of the word “corporation” for others adopted in former Codes. And this construction is rendered even more conclusive b reference to section 1' of the Code of 1896 wherein it provides that the word “person,” used in the Code, “includes a corporation as well as natural persons.” The case of Shannon v. Jefferson County; 125 Ala. 384, 27 South. 977, is also authority in this connection.

The defendant interposed five pleas. The first was the general issue. The special pleas purport to set up contributory negligence of the deceased. The trial court sustained demurrers to pleas 3, 4, and 5, but overruled them as to plea 2. There was no prejudicial error in this.

The remaining assignments of error relate to rulings on questions propounded to witnesses. A witness was asked: “* * * State what your duties are as chairman of the street committee.” Objection by plaintiff was sustained.- We do not think the exclusion of this question, if legal at all, resulted in injury to appellant. This witness, later in his examination, testified that he had no personal knowledge of the condition of the street, nor of the filling in of the ditch; and, besides, the question quoted related to his duties at the time of the trial, which was months subsequent to the injury complained of, and what they were then urns certainly immaterial.

The next assignment rests on the refusal of the court to permit a witness for appellant to state whether the street in question ivas in a “dangerous or impassible condition.” This called for a conclusion of the witness, and was well disallowed. .Whether the street was in a condition of the character inquired about could be determinable alone by the jury.

The last assignment is based on the court’s action in sustaining plaintiff’s objection to this question: “I will ask you to state to the jury whether or not, if there had been a ditch 12 or 18 inches deep on Fourteenth street for several days prior to the time Ivey was hurt, you would have noticed it.” The appellant cites several authorities to sustain his contention of error in this instance. They are not applicable to this question. They relate, with one exception, to cases of prosecutions for using improper language in the presence of females, or within hearing of a dwelling, etc. The excepted case was where, it appears, an effort was being made to impeach a witness as to a declaration made by a party in the hearing of others. Patently, the cited cases afford no ground to permit a witness to reply to a question like the one at bar. True, he might have traversed the street with frequency and not have noticed the defect, yet that could not avail to tend to show, even negatively, that it did not exist. If the question had tended to elicit the 'fact (if so) that witness, though frequently, at that time, over the street, did not see any defect therein, then there might be reason for the insistence that the question was improperly disallowed.

There is no error in the record, and the judgment is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.