Decatur Water Works Co. v. Foster

McCLELLAN, J.

The appellee’s motion to strike the bill of exceptions cannot be sustained. The status on which the motion is predicated is, in short, that the bill of exceptions was signed after the appeal had been taken. The office of a bill of exceptions is to afford the appellate court a history of the proceedings below. It is not judicial action in the case in the sense of adjudging or enforcing the rights of parties litigant. The act of signing a bill of exceptions is an authentication only of the memorial of the proceedings below, and., when properly authenticated, becomes a part of the record of this court. ' '

*179 The action is for damages for. injury suffered by plaintiff (appellee) in consequence of a buggy in which he was riding being pulled by a shying horse against a fire plug of the defendant, located about three feet from the curb, in a public and much used street. The appellant insists, and appropriately raised the inquiry on the pleadings, that the injury must be ascribed for proximate cause to- the shying of the horse, and not to the alleged negligent location, etc., of the fire plug in the street. In the recent case of McLemore v. City of West End, 159 Ala. 235 , 48 South. 663 , this question in substance was considered and treated and was there ruled against this appellant’s contention. No error, therefore, infected the action of the trial court in applying the principle indicated. — Crowley v. West End, 149 Ala. 613 , 43 South. 359 , 10 L. R. A. (N. S.) 801, turned in decision upon the intervention of an independent cause, viz., the effort of the plaintiff to assist the fallen horse to his feet; and hence is not influential in the case in hand. Through rulings sustaining demurrers to a number of pleas and also in excluding evidence proffered by the defendant, the court denied to defendant the asserted defense that the fire plug was located as directed by the city council of Decatur, on which, by charter, was conferred the poAver and authority to control such matters. The complaint in effect charged that the fire plug, as located, was an unwarranted obstruction in the public street, and that its location as described was an act of negligence. We have not been shown any charter provision permitting the creation by the city of Decatur of such a condition. Of course, if the city itself had no right or authority to create the condition described in the complaint, the defendant, however formal may have been its contract with the city for the installation of a waterworks system, could not receive any such right or *180 authority from the city. Not having that power or riglug the city could not confer it on the defendant.

The issue was negligence vel non in locating the fire plug, and permitting it to remain in the public street mentioned in the pleading. If, under all the circumstances, it was so negligent, then the defendant could not avail itself of the acquiescence or command of the. city authorities as an excuse or justification for the negligent condition caused by it. — Sou. Bell Tel. Co. v. Francis, 109 Ala. 230 , 19 South. 1 , 31 L. R. A. 193, 55 Am. St. Rep. 930 . See Groves v. Louisville Ry. Co., 109 Ky. 76 , 58 S. W. 508 , 52 L. R. A. 448, and note on page 460; Ring v. Cohoes, 77 N. Y. 83, 88-90 , 33 Am. Rep. 574 . This issue was properly submitted to the jury. The court hence committed no error in sustaining the demurrers to the pleas attempting to set up the city’s designation of the location of the fire plug in question as an answer to the negligence charged in the complaint, nor in excluding the contract with the city for the installation of the water plant, with hydrants, etc., located as the city directed.

The appellant does not insist upon the sufficiency on demurrer of the pleas of contributory negligence. These pleas, among other probable deficiencies, do not aver that the plaintiff at the time the horse shied was in such control of him as to have been able, with reasonable diligence or care, to avert the striking of the plug with the buggy. The refusal of' the court to allow the filing of additional pleas 10 and 11 after the evidence had been introduced was the exercise by the court of a discretion reposed in it. — Leader v. Mattingly, 140 Ala. 444 , 37 South. 270 .

Charges 2 and 4, refused to defendant, were abstractly correct, but, when referred to the issues on the trial, were misleading. They were well refused.

*181 Tliere is no reversible error in the record, and the judgment is affirmed.

Affirmed.

Dowdell, C. J., and Anderson and Mayfield, JJ., concur.