City of Ensley v. Smith

51 So. 343, 165 Ala. 387, 1910 Ala. LEXIS 23

• Court: Supreme Court of Alabama
• Decided: January 13, 1910
• Status: Published

Opinion

ANDERSON, J.

— It is true that in actions of this character against a municipality it is incumbent upon the plaintiff to aver and prove express notice of the defect, or facts from which it might be inferred that the corporate authorities were chargeable with constructive notice thereof. The complaint, however, in the case at bar, and each count thereof, avers that the defendant negligently allowed the street to become in a dangerous condition, and was a sufficient averment of implied or constructive notice. — Lord v. City of Mobile, 113 Ala. 362, 21 South. 366; Arndt v. City of Cullman, 132 Ala. 547, 31 South. 478, 90 Am. St. Rep. 922; City of Montgomery v. Wright, 72 Ala. 411, 47 Am. Rep. 422; L. & N. R. v. Hawkins, 92 Ala. 244, 9 South. 271. The trial court did not err in overruling the demurrer presenting the failure to aver notice of the defect.

This case was tried by the court without a jury, and the evidence was ore tenus, and the judgment of the court was like unto the verdict of a jury, and will not be disturbed here, unless it is plainly erroneous.— Woodrow v. Hawving, 105 Ala. 240, 16 South. 720, which has been repeatedly cited and reaffirmed by this court. We are not prepared to say that the judgment was plainly erroneous.

The only other error suggested in brief of appellant’s counsel refers to the fifth ground of demurrer. The brief merely repeats the assignment of error, and Sets out the ground of the demurrer, and is not supported by argument or citation of authority, and the ruling of the trial court in this respect need not be regarded.— Montgomery R. R. v. Hastings, 138 Ala. 445, 35 South. 412.

The judgment of the city court is affirmed.

Affirmed.

Dowdelu, C. J., and Sayre and Evans, JJ., concur.