City Council v. Reese

DENSON, J. This action is based upon the alleged negligence of the corporate authorities of the city of Montgomery in constructing or placing a man hole in the middle of one of the public streets of the city, so that it projected above the surface of the street six or seven inches, and in consequence of which plaintiff’s horse, while being driven along the street at night, struck his foot against the manhole and was permanently injured. The errors assigned relate alone to the judgment of the court sustaining a demurrer to plea No. 2. With respect to the alleged defect in the street, the plea averred that it was known, or should have been known, to the party [412] in charge of the plaintiff’s horse at the time of the alleged injuries. After demurrer was sustained to the plea, the defendant amended the plea by striking out the words, “or should have been known.” To the plea as amended the demurrer was refiled, and was overruled. It is the duty of municipal corporations to keep their streets and sidewalks in a reasonably safe state of repair for public use. And this duty extends to the whole width of these public thoroughfares. — City Council of Montgomery v. Wright, 72 Ala. 411, 47 Am. Rep. 422. While it may be true that knowledge of the defective? condition of a public street, or an obstruction in it, will require of a person using the street to exercise more care than if the street were not defective or obstructed, it does not follow that such person should institute an inquiry to ascertain if the street is in a safe condition or free from defects and obstructions, or to use due care and prudence to find out whether or not there are dangerous defects in the street. Especially is this true in the absence of an averment of notice of such defect. Such person may assume the street is in proper condition for public travel. — Mayor v. Tayloe, 105 Ala. 170, 16 South. 576; Mayor v. Starr, 112 Ala. 98, 20 South. 424. The demurrer to the plea was properly sustained, and the judgment will be affirmed. Affirmed. Haralson, Dowdell, and Anderson, JJ., concur.