Albrittin v. Mayor of Huntsville

Action for Damages against Municipal Corporation. 1. Judicial notice of charier. — The charter of a municipal corporation is a public statute, of which the courts will take judical notice. 2. Municipal corporation; when action lies against, on account of injuries caused hy defective streets or side-vMlcs. — To render a municipal corporation liable, in a civil action, for special injuries caused by defective streets or side-walks, it is not necessary that the duty of keeping its streets and side-walks in repair shall be expressly enjoined by its charter, or any other public statute : the duty and liability arise, when the charter confers express potver to open, improve, repair, and keep the streets, &c., in safe condition for travel, and additional power to raise the necessary funds for that purpose, by taxation or assessments ; and an action lies in favor of a person who is injured by the negleet of this duty, when he did not bring the accident upon himself by his own culpable negligence, and the defect in. the street or side-walk had existed, within observation by the people generally, for such length of time as must have enabled it to be known.

Appeal from tbe Circuit Court of Madison. Tried before the Hon. Louis Wyeth. This action was brought by James H. Albrittin, against tbe mayor and aldermen of the city of Huntsville; and was commenced on tbe 19th November, 1877. Tbe complaint was in these words : “ Tbe plaintiff claims of tbe defendant, a municipal corporation under the laws of said State, twelve thousand dollars, as damages, because tbe defendant failed to do its duty, and erect and put up a barrier, railing, or guard, along tbe north side of Spring street, a public highway in said city, and south of, and opposite the ‘ Huntsville Hotel,’ to prevent travellers and pedestrians from falling from the street or sidewalk, over a precipice, or declivity, there being and situated, about the distance of eight feet, to the basement or foundation of said hotel; whereby tbe plaintiff, who did not know of the existence of said precipice, in consequence of tbe said negligence of tbe defendant, on tbe nigbt of tbe 15tb of November, 1876, necessarily and unayoidably fell from said street, over said precipice or declivity, without fault of tbe plaintiff, and broke his leg, so that it had to be, and was, on the 16th of November, 1876, cut off above tbe knee. 2. “Plaintiff claims of defendant twelve thousand dollars damages, because it was, and is, tbe duty of the defendant to keep the streets of said city in repair, and to put up guards or railings, and, at night, to keep lights burning, opposite and near to any precipice, or dangerous declivity, in and contiguous to the streets and side-walks of said city. On the north side of, and contiguous to Spring street, which was, at tbe time of the grievances herein alleged, and now is, a public street and highway of said city, for all persons to pass and repass, go and return upon, there was, and has been for several years, and now is a dangerous precipice or declivity, opposite to which the defendant had, knowing the existence and situation of said precipice or declivity, wrongfully and negligently failed and refused to put any guard or railing, and near to which the defendant had failed to have any or sufficient lights to show and expose said precipice or declivity. The plaintiff, who did not know of the existence of said precipice, on the night of the 15 th of November, 1876, while passing along said Spring street, on foot, in consequence of the said negligence of the defendant in failing to place guards .or railings between said precipice or declivity and said street, unavoidably and necessarily fell from said street, to the bottom of said precipice, a distance of about six feet, and by such fall broke his leg, so that it had to be, and was, amputated above the knee on the following day ; and he, the said plaintiff, became and was sick, sore, lame, diseased, and disordered, and remained and continued for a long space of time, to-wit: from thence, hitherto, during all which time the said plaintiff thereby suffered and underwent great pain, and was prevented from attending to and transacting his necessary and lawful affairs and business, by him during that time to be performed and transacted : and was also, by means of the premises, forced and obliged to • pay, lay out and expend, and did pay, lay out and expend, a large sum, to-wit: the sum of two thousand dollars, in and about endeavoring to get healed and cured of the said wounds, sickness and disorder ; and was also, by means of the premises, forced and obliged to pay and expend, and did pay and expend a large sum, to-wit: two thousand dollars for board, lodging, and attention while so confined by said injuries; and was also forced to expend, and did expend and pay out, a large sum of money, to-wit: two thousand dollars, in bringing a suit against said defendant for said injuries; and was also forced to pay out and expend a large sum of money, to-wit: two thousand dollars, to have the business and work of the plaintiff done, which plaintiff was by the premises rendered unable to do ; and he, the plaintiff, was, also, put to great damage and loss, to-wit: the sum of twelve thousand dollars by reason of the premises. Whereby the plaintiff, for all the time of his future life, was made less able to support and maintain and care for himself. Therefore plaintiff sues,” &c. 3. “And the plaintiff claims of the defendant, a municipal corporation under the laws of Alabama, the further sum of twelve thousand dollars, because it was and is the duty of the defendant to keep the streets of said city in repair, and to remove, take away from, and prevent obstructions being upon the same, and to put up guards, barriers, and railing, and at night to keep lights opposite and near to any precipice or dangerous declivity in and contiguous to the streets and sidewalks of said city, unknown to the plaintiff. On the sidewalk, on the north side of Spring street in said city, which street and side-walk were at the time of the grievances herein alleged, and now is a public street, side-walk and highway of said city, for all persons to pass and repass, go and return upon, there was and has been for more than one year an obstruction or impediment, consisting of the end of a platform, which rests upon the side-walk and street, which blocks up, and makes said side-walk impassable, and prevents travellers from walking on said side-walk, and forces them to walk in said street, on north side of which, and‘contiguous to the same, there was and has been for one year, and now is a dangerous precipice, or declivity, opposite to which the defendant had, knowing the existence and situation thereof, and knowing the situation of said platform or impediment on said side-walk, wrongfully and negligently failed and refused to put any guard or railing, and near to which defendant failed to put any lights to show and expose said precipice and declivity ; and the said defendant, knowing the existence and situation of said platform, or impediment, refused to remove, and permitted the same to so remain, knowing that said platform, or impediment, would force travellers to walk near to and over said precipice. The plaintiff, on the night of the 15th of November, 1876, while lawfully passing and walking along said Spring street, in consequence of said negligence of the defendant, in failing to remove the end of said platform or impediment from said side-walk, could not walk thereon, and was forced to walk in said street; and, in consequence of the said negligence of the defendant in failing to place guards, railings, or barriers, at and on the edge of said street, between said street and said precipice, or declivity, he, the said plaintiff, necessarily and unavoidably fell from said street, to the bottom of said precipice or declivity, a distance of about six feet, and by such fall broke his leg, so that it had to be, and was amputated above the knee, on the following day; and he, the said plaintiff, became and was sick, sore, lame, diseased, and disordered, and remained and continued for a long space of time, to-wit: from thence hitherto, during all which time the said plaintiff thereby suffered and underwent great pain, and was prevented from attending to and transacting his necessary and lawful affairs and business, by him during that time to be performed and transacted; and was also, by means of the premises, forced and obliged to pay, lay out, and expend, and did pay, lay out, and expend, a large sum, to-wit: the sum of two thousand dollars, in and about endeavoring to get healed and cured of the said wounds, sickness, and disorder; and was also, by means of the premises, forced and obliged to pay out and expend a large sum, to-wit: two thousand dollars for board, lodging and attention, while so confined by said injuries; and was also forced to expend, and did expend and pay out, a large sum of money, to-wit: two thousand dollars, in bringing suit against said defendants for said injuries ; and was also forced to pay out and expend a large sum of money, to-wit: two thousand dollars, to have the business .and work of the plaintiff done, which plaintiff was by the premises rendered unable to do; and he, the plaintiff, was also put to great damage and loss, to-wit: the sum of twelve thousand dollars, by reason of the premises, whereby the plaintiff for all the time of his future life was made less able to support and maintain and care for himself. Therefore plaintiff sues,” &c. The defendant demurred to the whole complaint, and to each count thereof separately, assigning several causes of demurrer. The court sustained the demurrer, deciding, as the judgment recites, “ that the defendant is not liable, because there is no duty imposed on the defendant to keep the streets of said city in repair, or to put up guards or barriers, in cases, and under circumstances as alleged in the complaint.” The judgment on the demurrer is now assigned as error. It was not necessary to set out the charter of the defendant corporation, since the court will take judicial notice of it. — Smoot v. Mayor of Wetumpha, 24 Ala. 112 ; Perryman v. Greenville, 51 Ala. 507. An inspection of the charter shows that the corporation is invested with very full and ample powers in the premises— the power “to declare, prevent, and remove nuisances; ” “to erect and repair bridges; ” “ to construct drains and sewers, and keep them in repair; ” “ to keep in repair the streets, avenues, and alleys of said city; ” “to discontinue and close them when expedient; ” “to widen or change their direction, and to open new ones; ” “ to pave, gravel, macadamize, or otherwise improve any street, or part thereofand to provide the necessary funds for .these several purposes, by taxation, or assessments against persons or property. And, in addition to these powers, expressly conferred by its charter, the general statutes confer on all municipal corporations the power to “keep in repair all necessary streets, alleys, and drains, and to adopt regulations necessary for the same ; ” and make it a misdemeanor, on the part of the officers of the corporation, to suffer the streets to be out of repair for more than ten days at one time. — Code of 1876, §§1782, 1667, 4248. Prom these various statutory provisions, special and general, the duty to keep the streets in repair arises by necessary implication, although the charter does not expressly declare, as in the case of Smoot v. Mayor of Wetumpka, 24 Ala. 112, “the streets and highways of said city shall be kept in repair by said city.” Although the language of the charter may be, grammatically, only permissive, yet it is legally peremptory; for, “where power is given by statute to public officers by permissive language — as that they ‘ may, if deemed advisable,’ do a certain thing — the language used must be regarded as peremptory, when the public interests, or individual rights, require that it should beP — Svr per visors v. United States, 4 Wallace, 435. When the duty of keeping its streets and side-walks in safe condition is enjoined upon a municipal corporation by express words, or arises from a fair construction of its charter, there is a corresponding liability for a breach of that duty, by which any person suffers special damage; and this now seems to be the general doctrine, as laid down in the text-books and adjudicated cases. — Dillon on Municipal Corporations, 754-6; Wharton on Negligence, §§ 950, 975-6 ; Shearman andRedfield on Negligence, § 391, and notes ; Barnes v. District of Columbia, 1 Otto, 551; Nebraska v. Campbell, 2 Black, U. S. 590; Weighiman v. Corporation, &c. 1 Black, 39; Robbins v. Chicago, 4 Wallace, 658; Mayor v. Sheffield, 4 Wallace, 194; Conrad v. Ithaca, 16 N. Y. 158 ; Storrs v. Utica, 17 N. Y. 104; Spar-hawk v. Salem, 1 Allen, 30;' Bill v. Norwich, 39 Conn. 222 ; Davenport v. Rucicman, 37 N. Y. 568 ; Requa v. Rochester, 45 N. Y. 129; Barton v. Syracuse, 36 N. Y. 54; Browning v, Springfield, 17 Illinois, 143 ; Claybury v. Chicago, 25 Illinois, 535 ; Springfield v. Be Claive, 49 Illinois, 476 ; Jones v. Neto Haven, 34 Conn. 1; Meares v. Washington, 9 Ired. 73 ; Anne Arundel County v. Duckett, 20 Md. 468 ; Pittsburg v. Grier, 22 Penn. 54; Erie City v. Schwingle, 22 Penn. 388; Cook v. Milwaukee, 24 Wise. 270; Ward v. Jefferson, 24 Wise. 342; 17 Grattan, 241, 375; Western College v. Cleveland, 12 Ohio, 377; McCombs v. Akron, 15 Ohio, 476; Rhodes v. Cleveland, 10 Ohio, 159. The following English cases' sustain the same doctrine: Mayor v. Henley, 2 Cl. & F, 331; Mersey Docks v. Gibbs, 1 House of Lords Cases, 93 ; Scott v. Mayor, 37 Eng. Law & Eq. 465; Canal Co. v. Parnaby, 11 Ad. & El. 223. 1. In the United States, there is no common-law obligation resting on corporations, to repair highways, streets, or bridges, and they are not obliged to do so, except by force of some statute.— Williams v. Mayor, 1 Denio, 595, 600 ; Colev. Medina, 27 Barbour, 218; Peck v. Batavia, 32 Barbour, 634, 643 ; Carr v. Northern liberties, 35 Penn. 324-30; Smoot v. Mayor of Wetumpka, 24 Ala. 112; Shear. & Eedf. on Negligence, §§ 124-28, 346. 2. This doctrine applies to counties alsp; as to which, it has been repeatedly held, that they are not liable to a private action, at the suit of individuals who receive injuries, on account of neglect to keep the roads in repair. — Barbour County v. Broioder, 36 Ala. 366; Covington County v. Kinney, 48 Ala. 566; Sims v. Butler County, 49 Ala. 110 ; Dargan v. Mayor and Aldermen of Mobile, 31 Ala. 469; City Council v. Gilmer, 33 Ala. 116; Fowle v. Alexandria, 8 Curtis, 460 ; Biddle v. Proprietors, &e., 7 Mass. 169-86; Marr v. Leicester, 9 Mass. 237 ; Sussex v. Straddler, 3 Harr. 108; Detroit v. Blakeley, 21 Mich. 184, 112 ; 2 Kent, 274; Dillon on Municipal Corporations, 786. As to duties imposed on them, counties stand on the same footing as municipal corporations proper. — 24 Ala. 112. 3. Even when the legislature enjoins this duty on corporations, the decisions treat it as a public, and not a corporate duty ; and they are not liable to be sued civilly for damages, caused by their neglect to perform this duty, unless the action is expressly given by the statute. — Dillon on Mun. Corp, §§ 747, 717; Marr v. Leicester, 9 Mass. 247; 25 Ala. 461. 4. In the New England States, the liability is not implied, but statutory. — Dillon, M. C. §§ 747-8; 7 Mass. 9; 9 Mass. 248; 3 Cush. 121; 6 Cush. 141; 8 Cush. 554; 7 Gray, 421; 13 Gray, 59; 102 Mass. 489 ; 17 Conn. 475 ; 22 Maine, 114; 20 Maine, 246; 32 Maine, 536; 36 Maine, 393, 521; 2 N. H. 392; 36 N. H. 284; 27 Vermont, 443. These statutes impose on towns the duty to make their ways safe and convenient, and give an action for injuries caused, to person or property, by any defect or want of repair. 5. A municipal corporation is not liable to a private action for negligence in the performance of its duties, unless the duties imposed are imperative. — Smoot v. Mayor of Wetumpka, 24 Ala. 112 ; Cole v. Verbena, 27 Barbour, 218 ; Peck v. Batavia, 32 Barbour, 634; Oarr v. Northern Liberties, 35 Penn. 324. 6. There is a marked difference between the New England statutes, the Alabama statute, and the charter of Huntsville. In New England, the statutes impose the duty on towns. In Alabama, the county commissioners are vested with a discretion in the premises'. The charter of Huntsville does not impose any duty on the city, except to collect a street tax, and confers on the authorities power to allow parties, who are amenable to such a tax, to discharge it by working on the streets, and to require that taxes, collected in new portions of the city, be appropriated to the benefit of those portions; and these duties are not imposed in imperative terms, but only in terms which confer a discretion. — Charter of Huntsville, §§ 22,23; Code of City Laws, §§ 67, 91,143-48.