Abbott v. City of Mobile

COLEMAN, J. The appellant instituted his action to recover damages for personal injuries sustained, resulting, as alleged, from a defective sidewalk of the city of Mobile. The defect of the sidewalk, as testified to by the plaintiff, consisted of a loose board or plank over a drain or ditch in the sidewalk, and he testified that as he was walking along the sidewalk on or about the 15th of October, 1896, being ignorant of the condition of the sidewalk, he stepped on the plank,"and that it rocked or turned with him and caused him to fall. The testimony of -the wife corroborated him, and she further testified that the edge of the plank was unsound, and that she observed the defect about a Aveek prior to the injury. The plaintiff objected to evidence offered by the defendant [599] that in June previous the city repaired this drain, and had placed upon and over the drain a solid plank, fastened down. Standing alone, it may be that the evidence was too remote, but in connection therewith the city introduced evidence that during the same month of the injury, prior to October 27th and presumably after the injury, the city repaired the drain again, and that at that time the plank was solid and fast. It is true that the plank may have been made secure after the injury, and if this had been done, there would be no conflict in the evidence as to the condition of the sidewalk on the night of the 15th of October when the injury occurred. There is no direct evidence of such repairs. The conclusion lies in inference only, and the facts admit of-contrary conclusions. The evidence we think was properly admitted, and the court did not err in refusing to plaintiff the general charge. The plaintiff testified that he Avas permanently injured by the fall, and that he suffered in his arm, head and groin. The defendant Avas allOAved to prove that in March afterwards he made application to do police duty in the city, and that he Avas so employed, and that his duties required him to Araik up and doAvn the street, and to preserve order, and such duty Avas performed. We do not regard this evidence as very important, but we are of opinion that it Avas competent to be considered on the question of the extent of the injury sustained. There is no doubt there was error in the general charge given by the court ex mero motu, but to entitle a party to a reversal for errors in the general charge of the court, as distinguished from charges requested by either party, an exception must be reserved. Section 613 of the Code of 1896 (Acts 1894-5) applies to charges requested in writing and not to the charge given by the court. The record states that the leading counsel for the appellant in the trial court, expressed himself as satisfied Avit'h the general charge of the court, and it is eAldent that he was present at the time a portion of the general charge was repeated to the jury, and that he did not reserve an exception. In addition to the criticism made by counsel Avho represent appellant on appeal, see the case of Torrey v. Burney, 113 Ala. 496, as to the legal significance of the word “satisfy” when used in an instruction to the jury. [600] Charge six requested by plaintiff is bad for the reason that the principle asserted imposed a greater liability upon the city than that required by the law. A city is not held unqualifiedly to a knowledge of all defects in its sidewalks, but to a knowledge of those which may and would be discovered by the exercise of reasonable diligence and care. The charge is faulty in that it imposed a liability, if the “defect existed long enough for 'the city to have known it;” that is, as we construe the charge, if by the exercise of the utmost care and watchfulness, it might have been known. This rule imposes too great a degree of care upon the city. What has been said with reference to the rulings of the court upon the admission of evidence, sufficiently covers the other assignments of error relative to charges numbered four, seven and nine. The amendment to the complaint offered to be made by the plaintiff, after the jury had agreed upon a verdict and brought it into court, but before it was announced, came too late. It should have been offered before the cause was finally submitted to the jury. — Mahan v. Smitherman, 71 Ala. 563. The remark of counsel which is assigned as error was immediately withdrawn when made and expressly excluded by the court from consideration by the jury. We find no error in the record available to appellant. Affirmed.