Summary
In So. Ry. Co. v. McCourry, 221 Ala. 600, 602, 130 So. 216, 218, our Supreme Court has this to say: " 'Reasonable care' has regard to the conditions of public travel and the character of the bridge.
Summary of this case from Louisville N. R. Co. v. StanleyOpinion
7 Div. 970.
October 9, 1930.
Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.
Knox, Acker, Sterne Liles, of Anniston, for appellant.
In order to fix liability on a person or corporation charged with the duty of maintaining a highway, street, or bridge used by the public, for an injury caused by a defect in the same, it is a condition precedent to recovery that plaintiff must both allege and prove either actual or constructive notice on the part of the person so charged with the duty of maintenance. City Council of Montgomery v. Wright, 72 Ala. 411, 47 Am. Rep. 422; Town of Cullman v. McMinn, 109 Ala. 614, 19 So. 981. A general demurrer to a complaint, or any count which does not state a cause of action is sufficient. McCarty v. Williams, 212 Ala. 232, 102 So. 133; Allison-Russell-Withington Co. v. Sommers, 219 Ala. 33, 121 So. 42. The burden is upon plaintiff to make out his case; he must not only aver and prove both injury and negligence, but must go further and establish a causal connection between the injury and the negligence. Mobile L. R. Co. v. Roberts, 192 Ala. 486, 68 So. 815; Golson v. Covington Mfg. Co., 205 Ala. 226, 87 So. 439; Creola Lbr. Co. v. Mills, 149 Ala. 474, 42 So. 1019; Scales v. Central I. C. Co., 173 Ala. 639, 55 So. 821; Stowers v. Dwight Mfg. Co., 202 Ala. 252, 80 So. 90; Bromley v. Birmingham M. R. Co., 95 Ala. 397, 11 So. 341; Southworth v. O'Shea, 131 Ala. 419, 30 So. 774; Miller-Brent Lbr. Co. v. Douglas, 167 Ala. 286, 52 So. 414; John v. Birmingham Realty Co., 172 Ala. 603, 55 So. 801; Koger v. Roden Coal Co., 197 Ala. 473, 73 So. 33; St. Louis S. F. R. Co. v. Dorman, 205 Ala. 609, 89 So. 70; Merriweather v. Sayre Min. Co., 161 Ala. 441, 49 So. 916. Evidence of the subsequent existence of conditions to prove the existence of such conditions at a prior time is not admissible, in absence of proof that the conditions have remained unchanged and that a subsequent intervening cause does not alter the conditions. Hampton v. Norfolk W. R. Co., 120 N.C. 534, 27 S.E. 96, 35 L.R.A. 808; Powers v. Boston M. R. Co., 175 Mass. 466, 56 N.E. 710; Trask v. Boston M. R. Co., 219 Mass. 410, 106 N.E. 1022; Birmingham Union R. Co. v. Alexander, 93 Ala. 133, 9 So. 525; Southern R. Co. v. Lefan, 195 Ala. 295, 70 So. 249; Davis v. Alexander City, 137 Ala. 206, 33 So. 863; Foley v. Pioneer Co., 144 Ala. 178, 40 So. 273; St. Louis-S. F. R. Co. v. Curtis, 216 Ala. 296, 113 So. 54; Mayor, etc., of Birmingham v. Starr, 112 Ala. 98, 20 So. 424; 21 A. E. Ency. Law (2d Ed.) 517. It is error to sustain objection to a question which is merely introductory to other questions necessary to elicit facts which are material to the issues involved. Stoball v. State, 116 Ala. 454, 23 So. 162; Richardson v. State, 145 Ala. 46, 41 So. 82, 8 Ann. Cas. 108; Davis v. Smitherman, 209 Ala. 244, 96 So. 208. When the purpose of a question is obvious, it is error to sustain an objection stating no grounds. McCray v. Sharpe, 188 Ala. 375, 66 So. 441; Sanders v. Knox, 57 Ala. 80; Braham v. State, 143 Ala. 28, 38 So. 919. When a person selects a dangerous way to perform a duty, there being a safe way, knowing the way selected to be dangerous, or if the danger is open and apparent, then he assumes the risk and is guilty of contributory negligence. Tennessee Coal, Iron R. Co. v. Herndon, 100 Ala. 451, 14 So. 287; Illinois Cent. R. Co. v. Lowery, 184 Ala. 443, 63 So. 952, 49 L.R.A. (N.S.) 1149; Tallassee Falls M. Co. v. Moore, 158 Ala. 356, 48 So. 593; Wilson v. Gulf States Steel Co., 194 Ala. 311, 69 So. 921.
Young Longshore, of Anniston, for appellee.
The demurrer must distinctly point out the supposed defect in a complaint. Code 1923, § 9479; Wadsworth Red Ash Coal Co. v. Scott, 197 Ala. 361, 72 So. 542; Deason v. Gray, 189 Ala. 672, 66 So. 646; St. Louis S. F. R. Co. v. Phillips, 165 Ala. 504, 51 So. 638. Breaking or disconnecting of the steering gear of the car, causing it to plunge over an embankment, is the proximate cause of the damage done. City of Dallas v. Maxwell (Tex.Com.App.) 248 S.W. 667; Swain v. Spokane, 94 Wn. 616, 162 P. 991, L.R.A. 1917D, 754. To fix liability on defendant, it is not essential that plaintiff allege or prove notice to defendant of the defect; it is the duty of the defendant to use diligence in keeping the bridge in repair, and it is charged with knowledge of every defect such diligence would have discovered. South North R. Co. v. McLendon, 63 Ala. 266; Southern R. Co. v. Morris, 143 Ala. 628, 42 So. 17; Southern R. Co. v. Taylor, 148 Ala. 52, 42 So. 625; Shelby Iron Co. v. Morrow, 209 Ala. 116, 95 So. 370; Northern Alabama R. Co. v. Sides, 122 Ala. 594, 26 So. 116. A party traveling over a public highway or bridge has a right to assume that the highway or bridge is in a reasonably safe condition. Nashville, C. St. L. R. Co. v. Ragan, 167 Ala. 277, 52 So. 522. It is not error to allow testimony showing condition of an automobile after injury. Williams v. Bolding, 220 Ala. 328, 124 So. 892; Louisville N. R. Co. v. Johnson, 108 Ala. 62, 19 So. 51, 31 L.R.A. 372; Alabama G. S. R. Co. v. Bailey, 112 Ala. 167, 20 So. 313; Sharpe v. Hall, 86 Ala. 110, 5 So. 497, 11 Am. St. Rep. 28. Causal connection, or proximate cause, is a question of fact for the jury. Milwaukee R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256; Alabama V. R. Co. v. Dennis, 128 Miss. 298; Vaughn v. Dwight Mfg. Co., 206 Ala. 552, 91 So. 77.
The suit is to recover damages for injury to plaintiff's automobile, alleged to have resulted from a defect in a highway bridge maintained by defendant railway company at a crossing over its tracks.
The complaint, which is set out in the report of the case, avers the duty of defendant to maintain the bridge in a reasonably safe condition, and the facts out of which such duty arose, then avers a breach of duty by allowing a large hole to be in the floor of the bridge, the injury to plaintiff's car in passing over same, and concludes, "all of which damage was suffered by reason and as a proximate consequence of the negligence of the defendant in allowing the said hole to be in the bridge as aforesaid."
A similar complaint was held good against demurrer in Gulf, M. N. R. Co. v. Pistole, 218 Ala. 695, 120 So. 159. See, also, Walker County v. Davis, ante, p. 195, 128 So. 144.
If there be a shade of difference between "negligence in allowing" a defect in the bridge and "negligently allowing" such defect, only a special demurrer pointing out such fault in the complaint and giving opportunity to amend will suffice. The general demurrer does not raise the point.
In bridge cases of this character, it is not required that the complaint shall aver notice to defendant of the defective condition of the bridge. While in no sense an insurer of the safety of the bridge, the railroad company is required by law to exercise reasonable care to keep the bridge safe for public travel.
"Reasonable care" has regard to the conditions of public travel and the character of the bridge. It includes vigilance to see that a dangerous hole does not develop in the floor of the bridge by defective or decaying timbers, as well as to discover and remedy the defect after it develops. Both issues are presented under a complaint of this character.
Such is the effect of our decisions in several cases: Gulf, M. N. R. Co. v. Pistole, supra; N.C. St. L. Ry. v. Ragan, 167 Ala. 277, 52 So. 522; Southern Ry. Co. v. Taylor, 148 Ala. 54, 42 So. 625; Southern Ry. Co. v. Morris. 143 Ala. 628, 42 So. 17; Gulf, M. N. R. Co. v. Havard, 217 Ala. 639, 117 So. 223; S. N. Ala. R. Co. v. McLendon, 63 Ala. 266.
The evidence for plaintiff tended to show an opening in the floor of the bridge 10 to 12 inches wide; that he drove his car, a new Dodge coupé, over the bridge at night at about 25 miles per hour; that the right wheels passed over this opening and he felt the jolt; that after running off the bridge on down a grade, he presently approached a curve in the road; that in trying to round the curve the steering wheel spun round, and the car did not respond but plunged off the embankment, resulting in the injuries complained of.
Other evidence tended to show such car, passing at such speed over such gap in the floor, would probably cause a vibration of the body and steering attachments of 4 inches; that a runway some 20 inches wide, made of timbers 3 inches thick, was under the body of the car, the wheels running on the floor on either side of the runway; and that the steering connections under the car had a clearance of about 7 inches. In view of this evidence and further evidence that the steering attachments were working properly just before, and not working thereafter and as soon as there was occasion to steer the car, it cannot be said there was no evidence of causal connection between the defect in the bridge and the injury to the car.
Evidence that after the accident the steering attachments were found to have become disconnected was properly admitted.
True, this may have come about by the tumbling of the car down the embankment, etc., and would not, standing alone, warrant a finding that it was disconnected in passing over the bridge. But it was a circumstance corroborative of the evidence of the plaintiff that the steering device was put out of service before going over the embankment. Certainly, if the steering rod had been found connected and in working order, this fact would have been a vital circumstance in favor of defendant. The other evidence naturally led to such inquiry, and a failure to prove same, easily open to plaintiff, might have led to adverse inferences.
The question to defendant's witness Prestwood, "Do you know whether any other cars went off of there that night besides Mr. McCourry's car?" asked in connection with an inquiry as to the distance from the bridge to where plaintiff's car went off the embankment, might well have been allowed. The witness had testified he saw signs of where some car had gone off, but had no personal knowledge whether they were made by plaintiff's car.
However, the court had, by his rulings. opened up to defendant an inquiry as to the distance as evidenced by these signs, and defendant did not follow it up.
Since there was no evidence nor claim that any other car had gone off, and the court had not declined to allow proof of the distance in question, but had ruled favorably to defendant, we find no error to reverse in sustaining plaintiff's objection to the question quoted above.
In the case of the witness Adams, the defendant did follow up such inquiry, and the witness testified as to the distance from the bridge to the place where the car left the road.
Charge No. 1, refused to defendant, if not objectionable, was fully covered by given charges Nos. 1 and 3.
Refused charge No. 2 was likewise covered by given charge No. 4.
Indeed, these given charges were more favorable to defendant because of the alternatives therein stated.
The excerpt from the oral charge made the basis of assignment of error No. 20, taken in its setting, and construed in connection with all the instructions on that point, was free from error. N.C. St. L. Ry. v. Ragan, supra.
The portion of the oral charge, assignment of error 21, is a correct statement of the law.
No reference to a motion for a new trial, the ruling thereon, nor exception thereto, appearing in the bill of exceptions as required by statute, such ruling cannot be reviewed.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.