City of Birmingham v. Crane

SAYRE, J. The tAvo counts of the complaint, so far as concerns the objections taken to them by demurrer, ■Avere substantially equivalents of each other and, in respect to the averment of notice of the defect, folloAved forms which have had the approval of this court.— — 97 — Birmingham v. Pool, 169 Ala. 177, 52 South. 937; Ensley v. Smith, 165 Ala. 387, 51 South. 343, and cases cited. The complaint sufficiently avers that the defendant municipality had actual or constructive notice of the defect alleged for such length of time as gave its officers, in the exercise of reasonable diligence, opportunity to make repairs or take other sufficient precautions against the happening of accidents. — Lord v. Mobile, 113 Ala. 360, 21 South. 366. In argument against the sufficiency of the complaint it is stated that the death of plaintiff’s intestate appears to have resulted from a defective sewer plan, and it is said that the municipality is not answerable for the consequence of such a defect. In the first count the complaint is that defendant was guilty of negligence in alloAving water to accumulate on and run along the street in such volume and Avith such force as to Avash plaintiff’s intestate into a sewer where he was drowned. To this, in the second count, is added the averment that defendant negligently- permitted the mouth of the sewer to remain unguarded. Appellant’s contention in respect to its liability under these conditions is repeated in a number of charges requested by it and refused by the court. It is also expressed in a number of exceptions reserved on the admissibility of evidence. It is unnecessary to tre'at separately the assignments of error based upon these rulings. By them the defendant invokes that principle of law Avhich relieves a municipal corporation of liability for errors of judgment in the planning and execution of public improvements when its officers have followed the advice of one skilled in such matters and have used due care in the selection of their adviser. Snch advice will not, hoÁvever, excuse where there has been such palpable lack of skill and care as ■ought to have been appreciated by men of ordinary ex — 98 — perience and understanding. Nor is it perceived how the principle invoked can avail the defendant in the consideration of the case stated in the complaint and shown by the evidence. However much the defendant may have been advised and may have relied upon that advice in planning its system of drains and sewers, that advice was of no consequence in the presence of the plaintiff’s theory, amply sustained in the tendencies of the evidence, which was that, after repeated experiences through a series of years had demonstrated the plan or its execution to be so defective as to render the street at the place in question dangerous, defendant negligently omitted to supply a remedy. — Shearm. & Redf. Neg. §§ 271-275. Demurrers to the several special pleas, setting up the contributory negligence of the parent or other person having charge and control of plaintiff’s intestate, were well sustained, as was decided in the recent case of Southern Railway Co. v. Shipp, 169 Ala. 329, 53 South. 152. Appellant also assign's for error the court’s ruling on the sufficiency of plea A. We have been unable to find in the record either demurrer to this plea or ruling on its sufficiency; but, since the same proposition is advanced in some of the charges refused to the defendant and reserved for review Ave state our opinion that it presented an immaterial issue. The contention seems to be that a personal representative cannot maintain an action for the Avrongful death of his intestate, Avho Avas a minor, as long as there is a parent surviving. The language of. the statute authorizing the action, as it Avas at the time of the death of plaintiff’s intestate and the bringing of this suit (Code 1896, § 26) affords a sufficient answer to this contention. It proAdded that the parent or the personal representative might sue and recover such damages as the jury might assess. Under — 99 — the statute as amended in the Code of 1907, § 2485, the parent has the better right to sue, and the personal representative may sue only in cases where there is no surviving parent or the parent fails to sue within six months from the death of the minor. But the amendment had no effect upon existing rights or remedies.— Code, § 10. The right of plaintiff in this case is to be determined on the law as it was at the time plaintiff’s intestate came to his death. By that law the suit, whether brought by parent or personal representative, sought to enforce a right in favor of the parents. ' The personal representative, where he sued, acted as a quasi trustee for the parents who had the right to control the suit and direct the disposition of its proceeds. The personal representative in such case was hardly more than a nominal plaintiff; but, under the plain alternative of the statute as it then was, the suit was .properly brought in his name. — White v. Ward, 157 Ala. 345, 47 South. 166, 18 L. R. A. (N. S.) 568. Plaintiff’s case was this: After a heavy rainfall, water stood over the roadway and sidewalks of defendant’s street. On previous occasions a like condition had frequently followed upon heavy rains. A ditch, three or four feet deep, running along the edge of the sidewalk, conducted the water to the mouth of a sewer pipe 18 inches in diameter. On the occasion in question, roadway, sidewalk, and ditch were hidden beneath the accumulated water which spread over them all. Plaintiff’s intestate, a child under seven years of age, was wading about the street with other children when he stepped into the ditch, was drawn by the water into the unguarded mouth of the sewer pipe, and was drowned. To this case, and the inferences the jury were free to draw from these facts, it was no answer that the seAver had been constructed under advice of a competent engineer, or that the engineer still thought that the — 100 — sewer was planned and constructed in accordance with the principles of good engineering. The defendant was under no obligation to provide an artificial underground system of sewers. But, having undertaken to provide such a system, it was defendant’s duty to -see that a proper system was provided — one that would not leave the street in a dangerous condition. The question, then, for decisoin was whether under the conditions shown the accumulated water, or the accumulated water in connection with the unguarded sewer, sufficiently evidenced negligence on the part of the municipal authorities in the discharge of their duty to keep the street in a reasonbaly safe condition for the use of those who had occasion to pass along it for business or pleasure. This was an ordinary question of fact for the jury’s determination, and no witness, however expert, could properly be permitted to usurp the functions of the jury by expressing his opinion on that subject, for all the elements to be considered in determining the question at issue were open to the common understanding of the jury whose duty it was to draw the conclusion. — Warden v. L. & N. R. R. Co., 94 Ala. 277, 10 South. 276, 14 L. R. A. 552. The same proposition was presented in a different guise Avhen the defendant sought to have its witness state that well-regulated cities in America followed the plan of constructing sewers shown to have been folloAved at the place in question. No practice can excuse negligence. The defendant could not avoid responsibility for negligence in maintaining its streets, if the jury found there Avas negligence, by showing the practice of cities in America or elsewhere in planning systems of drains and sewers, and this, notwithstanding the opinion of the Avitness that such cities in that respect were well regulated. There was, therefore, no error in the — 101 — court’s rulings on questions of evidence, nor in refusing those charges which were requested by the defendant on the subject to which we have just here referred. — K. C. M. & B. R. R. Co. v. Burton, 97 Ala. 240-251, 12 South. 88. This suit was properly brought against the mayor and aldermen of Birmingham, a municipal corporation, and so the defendant is styled in the judgment rendered. Pending the suit and before judgment the Municipal Code Law of August 13, 1907, was passed (Code 1907, § 1046 et seq.), providing that all municipal organizations should be bodies politic and corporate, having perpetual succession, “under the name now used or hereafter assumed, * * * and each under such name as the ‘City of-,’ or ‘Town of-,’ as the case may be, shall sue and be sued,” etc. There was no amendment of the complaint to meet this change of corporate name, as there might have been. Appellant takes the point that the judgment erroneously followed the summons and complaint in the matter of the name and style of the defendant corporation. The change of name effected no change in the rights or liabilities of the corporation. As for the formal requirements of the judgment in a case prosecuted under the circumstances here shown, that was clearly provided for at the time of the enactment of the Municipal Code Law. The provision was that “all suits then pending in favor of or against municipal corporations shall continue to judgment unaffected by this chapter, and shall be enforced in favor of or against such city or town, as the case may be, notwithstanding a change of name or organization.” — Code, § 1050. After considering those assignments of error which have been argued for the appellant, we have reached the conclusion that the judgment ought to be affirmed. Affirmed. All the Justices concur.