Opinion
7 Div. 429.
February 7, 1924.
Rehearing Denied April 17, 1924.
Appeal from Circuit Court, Shelby County; W. M. Lackey, Judge.
Leeper, Haynes Wallace, of Columbiana, for appellants.
Temporary obstructions in a highway or street are permissible under some circumstances for the benefit or convenience of the individual, unless of such a character as to be a nusiance per se. B. R., L. P. Co. v. Smyer, 181 Ala. 121, 61 So. 354, 47 L.R.A. (N.S.) 597, Ann. Cas. 1915C, 863; Wells v. Gallagher, 144 Ala. 365, 39 So. 747, 3 L.R.A. (N.S.) 759, 113 Am. St. Rep. 50; Shelby I. C. v. Morrow, 209 Ala. 116, 95 So. 370. During a reasonable time, if the object is not dangerous and of nature not to constitute a nusiance per se, its presence in or alongside the street or highway would be neither an obstruction nor a nuisance. Cutter v. City of Des Moines, 137 Iowa, 643, 113 N.W. 1081; Fritsch v. City of Allegheny, 91 Pa. 226; Wheeler v. City of Ft. Dodge, 131 Iowa, 566, 108 N.W. 1057, 9 L.R.A. (N.S.) 146; Shelby I. Co. v. Morrow, supra. There was no notice to defendants of any dangerous obstruction in or alongside the highway. As the tractor engine did not constitute an obviously dangerous obstruction, no constructive notice could be inferred. Cain v. Syracuse, 95 N.Y. 83; McGinity v. New York, 12 N.Y. Super Ct. 674; Requa. v. Rochester, 45 N.Y. 129, 6 Am. Rep. 52; Hart v. Brooklyn, 36 Barb. 228. The right of the public to the free and unobstructed use of the highways is subject to reasonable and necessary limitations, and to such incidental, temporary, or partial obstructions as manifest necessity may require. Webster v. Chicago Ry. Co., 158 Fed. 769, 86 C.C.A. 125, 42 L.R.A. (N.S.) 568; Simon v. Atlanta, 67 Ga. 618, 44 Am. Rep. 739; Callanan v. Gilman, 107 N.Y. 360, 14 N.E. 264, 1 Am. St. Rep. 831; note 20 L.R.A. (N.S.) 600; Tolman Co. v. Chicago, 240 Ill. 268, 88 N.E. 488, 24 L.R.A. (N.S.) 97, 16 Ann. Cas. 142; Ind. Ry. Co. v. Calvert, 168 Ind. 321, 80 N.E. 961, 10 L.R.A. (N.S.) 780, 11 Ann. Cas. 635; 13 R. C. L. 179.
Longshore, Koenig Longshore, of Columbiana, for appellee.
In an action to recover damages for alleged negligence, the complaint is sufficient, if it alleges a duty owing the plaintiff by the defendant, or states facts from which the law will imply a duty. Wells v. Gallagher, 144 Ala. 363, 39 So. 747, 3 L.R.A. (N.S.) 759, 113 Am. St. Rep. 50; Birmingham E. B. R. Co. v. Stagg, 196 Ala. 612, 72 So. 164; 20 Standard Enc. of Procedure, 313; Shelby I. Co. et al. v. Morrrow, 209 Ala. 116, 95 So. 370. It is the duty of individuals or corporations who obstruct or otherwise create a dangerous place in streets or highways to use reasonable care to warn travelers of its existence, and they are liable in damages for any injuries proximately resulting from their failure to do so. 1 R. C. L. 1217; Heinmiller v. Winston Bros., 131 Iowa, 32, 107 N.W. 1102, 6 L.R.A. (N.S.) 150, 117 Am. St. Rep. 405; Water Co. v. Whiting, 58 Kan. 639, 50 P. 877; City of Anniston v. Ivey, 151 Ala. 302, 44 So. 48. Where a person has knowledge of the presence of an object, in or on edge of public highway, naturally calculated to frighten a mule of ordinary gentleness, failure to give such person warning or notice of its presence would not be the proximate or even remote cause of injury to him, resulting from his mule taking fright at such object and running away. Haller v. St. Louis, 176 Mo. 606, 75 S.W. 613.
This is the second appeal in this case. 209 Ala. 116, 95 So. 370. The only count upon which the case was tried was count G, which was added by an amendment after the cause was reversed on former appeal. Count G is practically the same as count F which was discussed and considered upon the former appeal, except that it contains an additional averment that the defendants "negligently caused or allowed said tractor engine for an unreasonable length of time prior to said injury, to wit, three hours to remain at said place and in said position and condition without leaving some warning or notice to travelers driving animals along said road of the presence of said tractor engine at said place and in said position and condition." The above quoted part of the count was evidently intended to meet the only infirmity of the complaint as pointed out in the opinion on former appeal and sufficiently does so unless this court can hold as matter of law that three hours was not an unreasonable time for leaving conditions as they are set forth. As to what was a reasonable time to remove the danger, that is, to remove the tractor or to readjust it or clear the view or otherwise render it less liable to frighten animals passing in the event the tractor could not then be removed was a question for the jury. As said in the former opinion, "The averment of such reasonable time or necessity was a material inquiry for the jury under the circumstances averred." We therefore hold that the trial court did not err in overruling the defendants' demurrers to count G.
There was no error in refusing the defendants' requested general charge. Whether the tractor could or could not have been moved within the time specified was no sufficient answer to the complaint, as it is broad enough to cover the condition in which it remained, and is not based solely upon a failure to remove same. The jury could have inferred negligence from a failure to readjust the tractor or a failure to clear away the weeds or bushes or to place a signal or warning at the point in the event it was not or could not have been removed within a reasonable time. For the same reason there was no error in refusing the defendants' requested charges 9, 29, 30, and 31.
There was no error in refusing defendants' requested charge 8. It is argumentative and singles out and gives undue prominence to a part of the evidence. Charge 28 is also argumentative.
Charge 24, whether good or bad, was substantially covered by given charge 13.
The judgment of the circuit court is affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.