Opinion
6 Div. 880.
April 19, 1923.
Appeal from Circuit Court, Jefferson County; J. J. Curtis, Special Judge.
Nesbit Sadler and J. M. Gillespy, Jr., all of Birmingham, for appellant.
The continuing of a nuisance, by omitting to reform it, is a mere nonfeasance; and where the continuance implies no action, no suit can be maintained, unless the party owning the property has notice or knowledge of the hurtful tendency of the nuisance, or be requested to abate it. Lamb v. Roberts, 196 Ala. 679, 72 So. 309, L.R.A. 1916F, 1018; Crommelin v. Coxe, 30 Ala. 318, 68 Am. Dec. 120; Loftin v. McLemore, 1 Stew. 133. Where liability of defendant depends on notice, such notice is of the gist of the action, and should be specially averred. Lawson v. Townes, Oliver Co., 2 Ala. 373; Rennedock's Case, Coke's Rep. 5, post, p. 101; Pierson v. Glean, 14 N.J. Law, 36, 25 Am. Dec. 497.
Coleman, Coleman, Spain Stewart, of Birmingham, for appellee.
The allegations of the complaint defining defendant's duty were sufficient. Lewy Art. Co. v. Agricola, 169 Ala. 60, 53 So. 145; Crogan v. Schiele, 53 Conn. 186, 1 A. 899, 5 A. 673, 55 Am. Rep. 88; McAdory v. L. N. R. Co., 109 Ala. 636, 19 So. 905; Norwich v. Breed, 30 Conn. 535; Beck v. Carter, 6 Hun (N.Y.) 607; Young v. Harvey, 16 Ind. 314; Leach v. Bush, 57 Ala. 145. And the breach of duty was sufficiently stated. M. M. Ry. v. Crenshaw, 65 Ala. 569; Hall v. Posey, 79 Ala. 90; L. N. R. Co. v. Jones, 83 Ala. 381, 3 So. 902; L. N. R. Co. v. Markee, 103 Ala. 168, 15 So. 511, 49 Am. St. Rep. 21; L. N. R. Co. v. Jones, 130 Ala. 470, 30 So. 586.
As we view count 2 of the complaint, it is not for the creation or maintenance of a nuisance, but is for negligence on the part of the defendant in allowing or permitting a dangerous condition to exist contiguous or adjacent to its right of way, which negligence consisted in the maintenance of conditions without providing a barrier or signal at the point of danger; that is, the declivity in the street where it terminated adjacent to its right of way. Whether or not the count sufficiently sets out facts from which a duty springs to provide guards or signals by this defendant at the point in question, we are not called upon to decide, for the reason that such of the grounds of demurrer as may have raised this point are not argued or insisted upon in brief of counsel. The count avers that these conditions existed for years, and the defendant could have been guilty of negligence for a failure to discover the danger and remedy same as well as a failure to do so after notice; and we do not think that knowledge on the part of the defendant was essential to the charge of negligence. We think that the count meets the seventh ground of demurrer, even if the negligence could not have been averred in general terms, as it in effect charges that the negligence consisted in maintaining the cut or right of way without placing guards or signals at the declivity adjacent thereto. It also shows that the maintenance of the cut or right of way in this unguarded condition was the proximate cause of the injury, thereby meeting the defendant's eighth ground of demurrer.
As the count was not subject to any of the grounds of demurrer that have been argued and as the agreed statement of facts supports the material averments of the complaint, the judgment of the circuit court must be affirmed, which is accordingly done.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.