City Council v. Bradley & Edwards

DOWDELL, C. J. This is an action for damages for the hilling of a mule, caused by the alleged negligence of the-defendants. The general issue and contributory negligence were pleaded in short by consent. The assignments of error are based on the refusal of the trial court to give written charges numbered from 2 to 9, inclusive. The negligence as charged in the second count of the complaint consisted in the failure of the defendants “to put up any proper safeguards or barriers to prevent-animals, persons, or vehicles passing along said street from danger of falling therein;” that is, into the hole, 4 feet in diameter and 14 feet deep, which had been dug by the defendant Barnett by permission of the city council in a public street of the city. The evidence is free from conflict as to the injury and as to how it oc curred. It is likewise free from conflict that no “safeguards or barriers were put up to prevent animals, etc., from falling” into the hole. It is insisted as a defense by the defendants that a man was stationed at the hole to warn the public of its existence and danger, and that such person gave warning to the plaintiff. The evidence in this respect, however, Avas in conflict. There was evidence on the part of the defendants tending to show that the dirt taken from the excavation was around the hole to about 3 feet high, while the evidence on plaintiff’s part tended to show that the dirt taken from the excavation was thrown on the side next to the sidewalk, and was not around the hole. There is no question as to the duty under the law resting on the municipality to keep its streets in safe condition for public travel and uses. This duty Avas im [234] posed, upon the municipality by its charter. — Acts 1892-93, p. 368. “A municipal corporation disregards one of its plainest duties when it permits an unguarded pit to remain in a city thoroughfare, where of necessity it is a constant peril to travelers.” — Mayor and Aldermen of Birmingham v. McCary, 84 Ala. 469, 4 South. 630; Mayor and Aldermen of Birmingham v. Lewis, 92 Ala. 352, 9 South. 243; Lord v. City of Mobile, 113 Ala. 360, 21 South. 366. Charge 2, requested by the defendants, was -properly refused. This charge not only ignores the duty that rested on one of the defendants, the city council of Montgomery, but refers to the jury to determine what constitutes a reasonable precaution, a question of law. Moreover, charges must he predicated upon- the issues joined, which this charge does not do. — Birmingham Ry. Co. v. City Stables Co., 119 Ala. 615, 24 South. 558, 72 Am. St. Rep. 955. The issue as made by the pleadings was the failure of the defendants to put up safeguards or barriers to prevent animals, etc., from the danger of falling into the hole, and not the failure to take “reasonable precautions.” Charges 3, 4, and 5 are substantially the same. Each of these is faulty in assuming that there were “circumstances surrounding the hole into which the plaintiff’s mule fell.” When the charge is referred to the evidence in the case, which must always be done, the only “circumstances” mentioned “surrounding the hole” was the dirt taken from the excavation, and the evidence as to this was in conflict. Moreover, the charge fails to hypothesize any knowledge or notice on the part of the plaintiffs of the “surrounding circumstances.” The plaintiff Bradley had the right to assume that the street was in a proper condition for use, and was under no duty to be on the lookout for the-pit in the street, nor [235] was he chargeable with culpable negligence in not discovering it. — Mayor and Aldermen of Birmingham v. Tayloe, 105 Ala. 170, 16 South. 576. Charge 6, refused to the defendants, when referred to the evidence, was- palpably bad. Bradley, traveling, as he was, on horseback and leading several mules attached to a halter, was under no duty to be looking forward and ahead of him all the time. The very manner of his traveling justified him as a reasonable and prudent person in looking backward to the mules he was leading at times, as well as forward. Moreover, there is no evidence that Bradley failed to look ahead of him while in charge of the mules. Charges 7, 8, and 9, refused to the defendanats, were each the general affirmative charge, varying only in form. The assignments of error predicated on the refusal of these charges are not insisted on, and therefore require no further comment. We find no error in the record, and the judgment is affirmed. Simpson, Anderson, Denson, and Mayfield, JJ., concur.