Opinion
6 Div. 705.
January 22, 1931.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
Wilkinson Burton, of Birmingham, for appellant.
A count charging that the injuries complained of resulted from allowing a hole to remain in an unprotected condition should allege facts which show that it was a special legal duty of the city to protect said hole and failed to discharge that duty. Mayor, etc., of City of Huntsville v. Ewing, 116 Ala. 576, 22 So. 984; J. T. Camp Transfer Co. v. Davenport, 15 Ala. App. 507, 74 So. 156; Burnett v. Ala. Power Co., 199 Ala. 337, 74 So. 459; Bloom v. City of Cullman, 197 Ala. 490, 73 So. 85. As against demurrer, a count must affirmatively aver facts showing defendant's liability. City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771; City of Birmingham v. Norwood, 23 Ala. App. 443, 126 So. 616; Kershaw v. McKown, 12 Ala. App. 485, 68 So. 559; Looker v. Gulf Coast Fair, 203 Ala. 42, 81 So. 832; Charlie's Transfer Co. v. Malone, 159 Ala. 325, 48 So. 705. Words or phrases used in a complaint. susceptible of two constructions, must be given the construction against the pleader. Charlie's Transfer Co. v. Malone, supra. There must be a causal connection between the negligence charged and the injuries sustained. Virginia-Carolina Chem. Co. v. Mayson, 7 Ala. App. 588, 62 So. 253; Orr Lanning v. Boockholdt, 10 Ala. App. 331, 65 So. 430; Burnett v. Ala. Power Co., supra. Where a complaint avers negligence in general terms and then alleges the particular acts constituting negligence without more, the complaint is demurrable unless the acts specified in themselves constitute negligence as matter of law. Johnson v. Birmingham Ry., L. P. Co., 149 Ala. 529, 43 So. 33; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933; Birmingham Ore. Mining Co. v. Grover, 159 Ala. 276, 48 So. 682; Jones v. Munson S. S. Line, 17 Ala. App. 226, 84 So. 415. Where the court errs in its rulings on charges requested, and they are set up as a part of the record proper, and the record indicates the rulings were prejudicial, the judgment will be reversed, notwithstanding there is no bill of exceptions. Black v. Sloss-Sheffield Steel Iron Co., 202 Ala. 506, 80 So. 794; Police Firemen's Ins. Ass'n v. Crabtree, 215 Ala. 36, 109 So. 156; Miller v. Mutual Gro. Co., 214 Ala. 62, 106 So. 396. In order to show a cause of action, a complaint must affirmatively show that the negligence relied upon is actionable. 45 C. J. 1072; Tennessee Coal, Iron R. Co. v. Smith, 171 Ala. 251, 55 So. 170.
Altman Koenig, of Birmingham, for appellee.
A complaint is sufficient if it alleges a duty, or states facts from which the law will imply a duty and a breach thereof. Averments of negligence may be general. Wells v. Gallagher, 144 Ala. 363, 39 So. 747, 3 L.R.A. (N.S.) 759, 113 Am. St. Rep. 50; Louisville N. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 50 L.R.A. 620; Alabama Fuel Iron Co. v. Bush, 204 Ala. 658, 86 So. 541; Shelby Iron Co. v. Morrow, 209 Ala. 116, 95 So. 370. A causal connection is shown between the negligence charged and the injuries averred. Shelby Iron Co. v. Morrow, supra. A municipal corporation disregards one of its plainest duties when it permits an unguarded pit to remain in a public street. Mayor, etc., of City of Birmingham v. Lewis, 92 Ala. 352, 9 So. 243; City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542; City of Montgomery v. Ross, 195 Ala. 362, 70 So. 634. The allegation as to the defect and notice as to its existence was sufficient. Lord v. City of Mobile, 113 Ala. 366, 21 So. 366. Common or popular words are to be construed in their popular sense, unless the contrary clearly appears. F. W. Woolworth Co. v. Erickson, 221 Ala. 5, 127 So. 534; Mobile Dry-Docks Co. v. City of Mobile, 146 Ala. 198, 40 So. 205, 3 L.R.A. (N.S.) 822, 9 Ann. Cas. 1229; Hubbell v. Yonkers, 104 N.Y. 434, 10 N.E. 858, 58 Am. Rep. 522; Webster's New Int. Dict. "Exposed," "Unprotected." In the absence of a bill of exceptions, rulings on charges and motion for a new trial will not be reviewed. Mauney v. Elect. Const. Co., 210 Ala. 554, 98 So. 874; Zavelo v. Leichtman, Goodman Co., 171 Ala. 65, 54 So. 537.
Count 1 as amended was not subject to the defendant's demurrer. It charges that the plaintiff stepped in a hole or depression in the paved part of a street, describing the hole or depression and giving the location, and that, as a proximate cause, she fell down a high terrace to that portion of the street used by vehicles. The negligence charged was in permitting the hole to remain in the street "exposed and unprotected" for more than a year. If the defendant negligently permitted the defect to remain in the street an unreasonable length of time, this would be equivalent to notice. Lord v. City of Mobile, 113 Ala. 361, 21 So. 366; City of Ensley v. Smith, 165 Ala. 387, 51 So. 343; City of Birmingham v. Norwood, 220 Ala. 497, 126 So. 619.
Counsel for appellant attach some importance to and criticize the use of the word "exposed," and set out in deadly parallel definitions of the word "exposed," each of which contains the words "lay open." We are willing to adopt these definitions, and think that the word "exposed," as used in the complaint, means that the defendant negligently permitted said hole to remain open and unprotected or unguarded. We also think the complaint shows a causal connection between the injury sustained and the negligence charged.
There was no bill of exceptions in this case, and the only other assignments of error relate to charges refused the defendant and the action of the trial court in refusing the motion for a new trial.
This court will not review the action of the trial court in giving or refusing requested charges in the absence of a bill of exceptions. Mauney v. Electric Const. Co., 210 Ala. 554. 98 So. 874.
The cases cited by appellant's counsel are inapt. Black v. Sloss-Sheffield Co., 202 Ala. 506, 80 So. 794, and Miller v. Mutual Grocery Co., 214 Ala. 62, 106 So. 396, were cases involving rulings on pleading, and the court simply held that, where charges were sent up, they might be looked to in determining whether or not the rulings on the pleading were injurious, although there was no bill of exceptions. They do not hold that the action of the court in giving or refusing charges will be reviewed in the absence of a bill of exceptions.
The case of Police Firemen's Ins. Ass'n v. Crabtree, 215 Ala. 36, 109 So. 156, was a reversal as to the ruling on the pleading.
The action of the trial court in refusing the motion for a new trial cannot be reviewed in the absence of a bill of exceptions. Zavelo v. Leichtman, Goodman Co., 171 Ala. 65, 54 So. 537.
The judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.