Dunn & Lallande Bros. v. Gunn

HARALSON, J. — In its merits this cause of . action is simple, and is for the recovery of damages for personal injuries caused by the alleged negligence of defendants in cutting a ditch across a road, which had been for many years traveled by the public generally, on foot, on horseback and in vehicles, and negligently leaving it open, without taking sufficient precaution to prevent persons driving on said road .from falling into the same. — 592 — This preliminary statement is made as justifying the course we take in not considering the many assignments bf error in detail, since it would be almost interminable to do so, and in confining ourselves to' such errors as are insisted on in argument and which relate to the real merits of the case. ' The’ assignments of error are but few short of- 100, and the transcript is very voluminous. 1. There were three counts in the complaint. The first alleges in substance, “that on and prior to-the 22d of February, 190-3, there was a neighborhood road leading froin.Longview Station in said county- (Shelby) to the public road, running from Calera to Pelham, Ala.; that saicl road was then and had' been for many years used by' the "public generally as a way' or- means of passage on foot, on horseback and- in vehicles from Long-view Station to Said public road; that defendants within a short time prior to said-date, made an excavation in or across said' roadway where it passes through the town of village of Longview,-from 12' to 15 inches deep, and from '5 to 6 feet wide, and negligently left said excavation open, without taking sufficient precaution to prevent pedestrians or people- driving, or on horseback from falling into the same,-” that while plaintiff was passing over said road at night, in a buggy draAvn by one horse, his buggy was drawn or carried into said ex-vacation with great force and violence, throwing him out or partially - out of said buggy or vehicle, when he was kicked by the horse drawing - said buggy, and on account thereof together with said fall, his body was greatly bruised, wounded, lacerated, etc.; that be was' made sore, sick and lame; that being a practicing physician and surgeon, he has been caused to lose a great deal,of time-'from his professional employment; had to spend a large sum of money in effecting and trying to effect a cure of his said injuries; has suffered great inconvenience, phvsicial pain and mental anguish "on account thereof, and has been permanently disabled and injured, wherefore he sues, claiming damages as raid. — 593 — -• The second count is practically the same as the first, except that it does not charge that the road was a neighborhood road. The third differs but little from the first count. The cause of action' as therein stated, and the damages claimed are in substance and effect the same as in the first. The averment is made that “the damages are particularly set out in the first count of the complaint to which reference is hereby made, to his damages aforesaid.” This averment, of course, sets out by adoption, the averment of the first count, that plaintiff was a practicing physician and his loss of time and. practice therein stated from said injuries. The counts of the complaint were demurred to, on some 20-odd grounds, and the demurrers were overruled. 2. A public highway, as contradistinguished from a private highway, is one under the control and kept by the public; dedicated for that purpose by the owner; used by the public for 20 years, or, established in a regular proceeding for that purpose. — Lewman v. Andrews, 129 Ala. 174, 29 South. 692. Every public thoroughfare is a highway, and a way open to all the people is a highway, whether it is strictly speaking public or private. “Roads generally used by the citizens of a locality, but open to the general public, are public roads, although they may afford facilities for travel to only such persons as reside in the neighborhood, and may not be useful to the general public. * * * The character of the road does not. depend upon its' length, nor upon the places to which it leads, nor is its character determined by the number of persons who actually travel upon it. If it is free and common to all the citizens, then, no matter whether it is or is not • of great length, or whether it leads to or from • city, village or hamlet, or whether it is much or little used, it is a public road.” —Elliott on Roads & Streets, §§ 11, 1, 3. If the owner of land permits the public, or individuals to travel on his land on a. way or rqad such as is described in the complaint, he cannot make pitfalls, or place dangerous obstructions in the traveled way, without first giving notice or warning to those making use — 594 — of the way. It that be so, a third person conld not acquire the right to do so, under, the owner’s license or permission. So, if the railroad .company, over whose right of way this road ran, could not obstruct the same, without notice to those it had allowed and. those invited to. travel over it, the defendants-could not, even by the license or authority of the owners of the land, have dug this ditch, if the-same was a dangerous obstruction, without notice of its existence. A leading English case, similar- in its general features to the one in hand, is that of Corby v. Hill, 4 Eng. Com. Law Reports, 554. Cockburn, C. J., in his opinion says: “The proprietors of the soil held out' an allurement whereby the plaintiff was induced to come upon the place in question,: they held out this road to all persons having occasion to proceed to the asylum (to which place the private road led), as the means of access there-, to. Could they have justified the placing of an obstruction across the way, whereby an injury was occasioned to one using the way by their invitation? Clearly they could not. * * * If that be so,' a third person. :could not acquire'-the right to do so under their license or permission.” And Wiles, J., in-his opinion in the same case, says: “The defendant (who was not the owner of the land, but who had permission of the owner to place building material on the road which ran over the land) had no right to set a trap for plaintiff. One who- comes upon'another’s land, by the owner’s permission or invitation has á right to expect that, the owner will not dig the pit thereon, "or permit another to dig a pit thereon, so that persons lawfully coming thereon may receive injury.’'’ To the same effect in principle, see 1 Thompson on Negligence, § 1016. • From the foregoing it will ■ appear, that the complaint, in its several counts, states a good cause of action, and' the demurrers were properly overruled, 3. The defendants filed pleas numbered from 3. to 19 inclusive. The-court sustained ■ demurrers to pleas'2, 5, 8, 9 and 10, and 'overruled •them as to the- others. The first plea was the general-issue. The second averred,'that there was nd neighborhood-or .public highway from Lóngview to the public road-to- Calera, as alleged — 595 — in the complaint. The first count averred that the road so leading from Longview to said public road was a neighborhood road, and .the third count that it was a public road. This plea denying that there was a neighborhood or public- road must, therefore, be construed as presenting the same defense as the general issue already pleaded, in the first plea. The burden was already on the plaintiff, under the plea of the general issue, to prove that it was a neighborhood or public highway leading from Longview to the public road to Calera, and all that is pleaded by said second plea, was available in defense under the plea of the general issue. The second count did not aver that-it Avas a neighborhood or a public road, but simply that it was a road used generally by the public. The plea did not confess, avoid- or .deny the allegations of the second count.. The fifth plea set up,:that said road, if any, as referred to in the complaint, Avas so dim and. indistinct that it did not appear to ordinary observation to be a road used by the public. - The plea does not set -up that defendants did not know that the road was traveled by the public. If they knew that it Avas traveled by the-public, it would seem that it made; no difference, if it Avas dim and indistinct. A road may be. dim and indistinct, especially at night, and yet be one AA-hich is traveled by the public. . - What is said above applies .Avith equal force to the -eighth plea. Furthermore, the counts in the complaint aver that the place of the injury was in the village, of -Longview, which the plea denies. The plea Avas in effect the general issue, as all set up in -it was provable under the general issue. The ninth plea sets up,-that at the time defendants cut said ditch, it Avas not reasonably obvious to them that-the same would be dangerous to persons crossing it traveling in vehicles along said road. It would occur to the ordinary mind, that if the defendants cut a ditch across said road, which was in fact dangerous to persons traveling in vehicles, to cross it, it could make no difference whether it appeared to defendants to be dangerous or not. They Avere responsible for the ditch, as it- Avas actually cut, if it was -a dangerpus impediment — 596 — to travel, and liable to inflict injury on those-passing, notwithstanding it did not appear to them, the'defendants, to be dangerous. Not how the- ditch appeared to defendants, as being dangerous or not, but' its actual liability to do damage to others in passing over it, is the real point to be considered. The tenth plea set up an immaterial issue-. Revoking the right or revoking the permission to travel on said road, without notice by the owner to travelers,' of such revocation, wmuld not answer the claim of one injured without such notice. Under the head of “Duty to Warn the Public of Revo-, cation of License to- Come upon One’s Premises.” Mr. Thompson says: “It is a, sound and just conclusion that all owners-or'occupiers of land who has given to The public or to any particular person or corporation a license to come upon or to cross his premises, or, to establish a private way or even a 'railway thereon, must, before exercising his powder to revoke such license, anticipate that danger may occur therefrom to those who may be accustomed to use the license, and is therefore bound to notify them of such revocation, and to- warn them of any fence, obstruction-, or other dangerous means to which he may have resorted to- exclude them from his premises.” — 1 Thompson on Negligence, § 1016, and many authorities there cited. It is not averred in the plea, when or how the revocation was made, nor that any notice was given to plaintiff or to any persons who 'were permitted to travel the road. For aught appearing, it may have been done only a brief time, and how long before the injury wms inflicted on plaintiff, does not appear. The demurrer to the plea was properly sustained. 1. The sixteenth to twenty-fifth assignments of error, relate to- the admission of testimony, having relation to the damage plaintiff sustained. The following questions wliich for convenience we number, were propounded by -his attorney to- the plaintiff, while being examined as a witness in his own behalf: “(1) Can you do your practice as conveniently- and as agreeably as you could before you were- injured? (2)' State what per cent, your piactice has decreased since you were injured. (3) You stated in your cross-examination that — 597 — your skill as a physician is as great now as it- ivas before you were injured. Please state if your ability to- prosecute your profession is as great now as it ivas before you were injured, and if not, what per cent, has your ability to practice your profession decreased since you were injured. (4) State what amount had been your average practice per month before you were injured. (5) What per' cent, has the average amount per month you make out of your practice decreased since you were injured?” The questions numbered 1 and 4 called for competent and legal evidence, and the objections to them were properly overruled. Those numbered 2 and 5 called for irrelevant testimony, such as was not within the issue made up by the pleadings. The complaint does not claim damages on account of loss of business sustained by the plaintiff on acount of the injuries sustained by him. But. we are not to be understood as committing ourselves to the proposition, that such demages would be recoverable, even if laid in the complaint. The motion to exclude the answer to the 3rd question should have been sustained, for the same reason as above laid down for sustaining objections to questions 2. and 5, as not being within the issues made by the pleadings, and, in that it expressed the mere opinion of the witness.— Ha-mes v. Brownlee, 63 Ala. 277; A. G. S. R. R. Co. v. Tapia, 94 Ala. 230, 10 South. 236. 5. Objection to questions propounded by defendants’ counsel to witness-E. J. Dunn, one of the defendants, while being examined as a witness as appears on pages 118 and 119 of the record, constituting assignments of error 26 and 27, were properly sustained. The witness was not asked what he knew, or of what he had been informed, and otherwise he could not know except by hearsay or opinion, what his partner or firm knew or did not know, or of what they were or were not informed. Witness was not all the time with the parties in charge of the work, and could not personally know Avhat they had or had not been informed. — Bailey v. State, 107 Ala. 153, 18 South. 234. The court was fair enough in making its ruling, to state, that if the witness knew of any facts tending to show that either his — 598 — partner or firm dicb not know of the existence of the road, he could testify to- such facts-. ' ' ' ■ 6. Tt appears that J.- B-. Adams- owned and operated the Longview Lime Works, and the land immediately around Longview Station, on which the road in question existed:- He was a-nonresident and conducted his business through . a superintendent, and defendants claimed to have had authority -from such superintendent to cut the ditch' across' this road. Adams whs asked by plaintiff, examined as one of his witnesses:'- “Did your superintendent Lavé any authority from yo-u, to give any one the right' to cut a ditch along’ or over your land" where this ditch rvas -cut'?” To this question defendants interposed several objections (Record, p. 122)’ which were overruled. Witness ■ answered, that he did not. The fact that the superintendent of the lime works had no authority to- authorize -the cutting of this ditch by defendants was competent to be- shown, if that were important; but, if it were true that this superintendent did allow defendants to cut it, that fact would not authorize them to so cut it, as to endanger a traveler along the road in' the nighttime, who had no- notice of the existence o-f the ditch. Moreover, if the-superintendent of the lime works, was not the general’superintendent of Adams, o-f all his' business in this state, he had no authority, by- virtue of being superintendent of the lime works, to interfere in this outside matter, which had no connection with the'lime works. 7. After the conclusion of the 'evidence, the bill of exceptions states: “The court, at the request of the defendants’ counsel made before the argument began, charged the jury in writing as follows.” Here follows the written charge. It is not a violent construction of this language, to hold, that this written charge, as given, was prepared and requested -by defendants’ counsel, and not that it was a request for the court to charge the jury ’in 'writing as’provided by section 3327 of- the Code. If this is a proper construction of the request under consideration, it was not competent for counsel to afterwards except to portions of the- charge, as they did. ' It may be said, however, that this construction is technical, and that it is obvious that the intention was — 599 — intended to be a request for the court to- charge in writing. Lest we may' do injustice to the defendant, we will add, that we have examined' the portions of said charge excepted to, under the authorities above cited, when construed in connection with other portions, and with all of said charge, we find no error in them. The court gave at the requested of the plaintiff, five writen charges numbered la, 2b, 3c, 4d, and 5e (pages 145, 146 of record). We have examined each .of these charges, and under the authorities above quoted, fail to find reversible error in. any of them. 9. The court gave 12 charges requested by the defendants, and refused 24 (pages 147, 151, 157 and 158). A careful review of said charges so refused, fails to disclose error in any of them. It is proper tO' remark, that a review of these charges to show their faults, would involve a great expenditure of time and trouble without any profit. Beversed and remanded. Tyson, C. J., and Simpson and Denson, JJ., concur.