Town of Cullman v. McMinn

109 Ala. 614

• Court: Supreme Court of Alabama
• Decided: November 15, 1895
• Status: Published

Opinion

BRICKELL, C. J.

The liability of municipal corporations for injuries to persons lawfully using the streets, caused by defects or obstructions therein, springs from the duty, imposed upon them by law, to keep the streets in a safe condition for public use. It is said by Judge Dillon : “Where the duty to keep its streets in safe condition rests upon the corporation, it is liable for injuries caused by its neglect or omission to keep the streets in repair, as well as those caused by -defects occasioned by the wrongful acts of others, but, as the basis of the action is negligence, notice to the corporation of the defect which caused the injury, or of facts from which notice thereof may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to the liability.” 2 Dill. Mun. Cor. (4th ed.), § 1034; City Council v. Wright, 72 Ala. 411.

The trial was had on the second and fourth counts of the amended complaint, and on two counts subsequently filed. To these counts numerous demurrers were interposed by the defendant, the grounds assigned being that they did not aver notice to the defendant of the defect in the bridge causing the injury, nor facts from which notice could be inferred. The averment of the second count .is : “That the defendant negligently suffered a bridge on Fourth Street * * * to be out of repair * * * for a long space of time, and especially that it negligently suffered the said bridge * * * to be and remain in such bad repair * * * that the same was dangerous in its use * * * by reason of a plank * * being in a rotten condition, or not being thick enough to support a horse * * * .” The fourth count is in substance xhe same. As to the two additional counts, the first avers : “that the said bridge was out of repair for a great length of time, and such length of time as to lead to the presumption that the proper officers of.the town or city did in fact know, or with proper dilligence and care might have known that said bridge was out of repair.” The second avers, that the defendant ‘ ‘suffered a bridge * * to be and remain out of repair, and unfit for safe use * * * for a long length of time.”

In City Council v. Wright, supra, it is said, “The plantiff must aver and prove express notice of the alleged defect in the highway, or facts from which it may be inferred that the corporate authorities were properly chargeable with constructive notice.” It is constructive, not actual notice, it is apparent the pleader intended to aver. It would perhaps be better pleading, if he had averred that the defendant had, prior to the occurrence of the injury, notice of the defect in the bridge by which the injury was caused. Such averment could have been supported by evidence of knowledge, or of notice, actual or constructive. But, relying on an averment of 'constructive notiée, facts should have been stated from which, necessarily, the notice would be imputed. The character of the defect should have been stated with some degree of certainty, and the circumstances and length of time of its visible existence should also have been stated. A “long space of time,” or a “long length of time,” is, each, too indefinite, indeterminate in meaning, for a predicate of legal presumption of constructive notice. It may be true a bridge was out of repair for a “long space of time,” or “a long length of time,” whatever meaning may be attached to the phrases, and yet the defendant may not be chargeable with negligence. ' The defect may have been latent, invisible, developing on the occasion of the injury, escaping all prior inspection, however careful, and not fixing upon the defendant liablity. The counts, in the respect we are considering them, are wanting in that perspicuity and certainty which is essential to reduce the matter of controversy to an intelligible issue. Code, § 2664. We are not detracting from the force, as evidence, of notice or knowledge,'the notoriety, or the long continuance' of a defect or obstruction in the streets. The one or the other is evidence from which a jury may reasonably infer, and in the absence of countervailing evidence, will infer, the knowledge of the corporation, notice to it, or a want of reasonable diligence in the corporate authorities. We have before us now only the sufficiency of the complaint, as assailed by the demurrers, and we are constrained to the conclusion the demurrers were well taken and ought to have been sustained.

The fault of the ifiaintiff in riding over the’ bridge, at the time of the injury, at a rate of speed prohibited by the ordinances of the town, will not affect his right of recovery, unless the jury are satisfied that the rate of speed at which he was riding contributed to the injury. 1 Sherman & Redfield Negligence, § 92; Baker v. Portland, 58 Me 199; (S. C. 4 Am. Rep. 274); Kipper v. Coffey, 44 Md. 117; Hall v. Ripley, 119 Mass. 135; Steele v. Burkhardt, 104 Mass. 59. There was, of consequence, no error in the refusal of the several instructions on this point requested by the appellant.

The remaining questions involved in the assignments of error will not probably arise on another trial under the same circumstances, and we do not deem it necessary or proper to consider them particularly.

For the error pointed out, the judgment is reversed, .and the cause remanded.