McLemore v. City of West End

DENSON, J. The original complaint contained four counts, in which it was averred, in varying form, that the duty rested upon the city of West End, a municipal corporation, to keep its streets in reasonably safe condition; that it had negligently allowed a wire fence to be maintained in a street of the city; and that the plaintiff, while riding on horseback along the street, was injured, by Ids horse becoming unmanageable and running into the fence, throwing the plaintiff, breaking his leg, and otherwise injuring him. The general issue [238] was pleaded; and after the introduction of some of plaintiff’s evidence, which tended to show that his horse, at the point described in the complaint, became frightened, and unmanageable by reason of fright, and by coming into contact with the fence was thrown upon the ground, and upon or against plaintiff’s leg, breaking it, plaintiff amended his complaint by averring that the horse fell against the fence, and in falling fell upon the plaintiff’s leg, and further offered to amend third count by striking out the word “unmanageable” and inserting in lie-u thereof the word “frightened.” The court, upon the motion of defendant, struck this latter amendment from the file as a departure from the original complaint. The plaintiff excepted to this ruling, and then, with leave of the court, amended the third count by adding, after the word “unmanageable,” where it occurs in said count, the words “by reason of fright.” The defendant demurred to the complaint as amended, upon the grounds that the complaint set up a new cause of action, that the fence being out in the street was not the proximate cause of the injuries complained of, and that the complaint failed to show any duty upon the part of the defendant in relation to the fence. The demurrers were sustained, and, the plaintiff declining to plead further, judgment was rendered for the defendant. The duty of municipal corporations to keep their streets and sidewalks in a reasonably safe state of repair for public use is too well established to admit of further controversy; and this duty extends to the whole width of these public thoroughfares. — City Council of Montgomery v. Reese, 146 Ala. 410, 40 South. 760. If a municipality has been negligent in the discharge of of such a duty, and the person injured is not at fault, it is'liable (according to the weight of authority) Avhere the injury would not have occurred but for the obstruc [239] tion or defect. It. cannot excuse its cupability by saying that the injury possibly, or even probably, would .not have happened but for the intervention of a concurring cause, such as a horse becoming unmanageable through fright, for which neither party is responsible.— Elliott on Streets, § 615, and authorities there cited; Ring v. City of Cohoes, 77 N. Y. 88, 33 Am. Rep 574. The rulings upon the demurrers to the complaint are opposed to these principles, and must work a reversal of the judgment of the court below. The court erred, also, in striking the “sixth amendment” to the complaint. It did not create an entirely new cause of action, as is assumed by the motion, and was clearly admissible. Reversed and remanded. Anderson, McClellan, and Mayfield, JJ., concur. Tyson, C. J., and Dowdell and Simpson, JJ., dissent.