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(102 So.)

all the furniture back, and the "back. pay-[ The record is free from reversible error, ments" due then were $48 which was un- and the judgment is affirmed. paid, and for which he sues to recover. The Affirmed. defendant offered no evidence.

This property was household and kitchen furniture, liable from use to depreciate GARDNER, JJ., concur. greatly in value, and, if returned, to be greatly less in value then when purchased; so the parties agreed in the contracts, if the goods are returned, the defendant would make all back payments. The furniture was returned to the vendor by the vendee with

ANDERSON, C. J., and SAYRE and

CITY OF BESSEMER v. BARNETT. (6 Div. 193.)

mutual consent of the parties; the defend (Supreme Court of Alabama. Oct. 23, 1924.

ant agreeing then orally, as he had previous-
ly done in writing, to make all back pay-1.
ments.

The court tried this cause without a jury. There was ample evidence to sustain his finding of facts. It was undisputed under the written and oral agreements of the parties and the evidence that the defendant owed plaintiff a balance of $48, then past due, when the furniture was returned, which amount he agreed to pay to the plaintiff.

The court did not err in finding defendant was indebted to the plaintiff in the sum of $48, and properly rendered a judgment in favor of the plaintiff for it. Montgomery Iron Wks. v. Smith, 98 Ala. 644, 13 So. 525. The court in the judgment rendered taxed the defendant with the cost.

[9] The defendant presented to the court a written motion to retax two items of the cost, and averred that the cost bill contained an item of $5 in favor of W. K. Schanz for services rendered as a stenographer in this cause, which was charged and taxed in this suit, and an item of cost for a library fee, because the respective acts of the Legislature permitting and allowing said items of cost to be included in the cost bili were each unconstitutional and void.

The court overruled the motion.

This judgment of the court will be presumed free from error until the contrary is shown. Beadle v. Davidson, 75 Ala. 494. There was no evidence offered to sustain the facts averred in the motion. There is no evidence to show that a fee of $5 for W. K. Schanz for serv

Rehearing Denied Nov. 27, 1924.)

Municipal corporations 763(1)-Duty to maintain streets reasonably safe.

A municipality is under legal duty to maintain its streets and sidewalks in reasonably safe condition for use of public and is liable in tort to do so, especially in view of Code 1907, § to person thereby injured for negligent failure 1273 (Code 1923, § 2029).

2. Municipal corporations 747 (2) -Maintenance of streets corporate duty.

The duty of a municipality to maintain its streets in reasonably safe condition is a corporate rather than a public duty and its officers or agents are engaged in a ministerial rather than a governmental function in performance of this service.

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3. Municipal corporations 763(1) — Duty to maintain streets reasonably safe not suspended during work.

The duty of a municipality to maintain its streets in a reasonably safe condition is a continuing duty not suspended while street force engaged in working streets, and liability exists for negligent performance as well as nonperformance of this duty.

4. Municipal corporations 747 (2) — Liable for negligent maintenance of streets, whether negligence of superior or subordinate agent caused injury.

A municipality is liable for injury resulting from negligent maintenance of streets, whether a subordinate agent or employee or a superior was person whose negligent act or omission caused the injury.

5. Municipal corporations 812(6) — Claim for injuries substantially complying with statute sufficient.

if it complies with statute in such substantial way as to accomplish this purpose, neither technical accuracy nor particular negligence relied on being required.

ices rendered as a stenographer and a li-pality for injuries as required by Code 1907, § The purpose of filing claim against municlbrary fee were charged against the defend- 1275 (Code 1923, § 2031), is to advise municiant in the cost bill in this cause. Neither pality of accident for purpose of investigation the motion nor the facts averred therein are and adjustment without suit, and is sufficient evidence. There should be in the record some affirmative proof to sustain the averments of the motion. The constitutionality of the respective acts mentioned is not presented by the motion, because there is no evidence to sustain the facts alleged, and the denial of the motion by the trial court will not be disturbed when it appears no evidence in proof thereof was introduced. Beadle v. Davidson, 75 Ala. 494; Torrey v. Bishop, 104 Ala. 548, 16 So. 422; McCord v. Bridges, 207 Ala. 376, 92 So. 447.

6. Municipal corporations 816(11) — Claim for injuries held not at variance with complaint.

filed under Code 1907, § 1275 (Code 1923, § A claim against municipality for injuries 2031), alleging that street was in "a defective and unsafe condition," held not at variance with allegation in complaint that street was "in a wet, damp, and defective and unsafe condition."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

7. Witnesses 240 (2)—Leading questions a municipality is under the legal duty to discretionary with court.

The allowance of leading questions in examination of witnesses is in discretion of trial

court.

maintain its streets and sidewalks in a reasonably safe condition for the use of the public; and for the negligent failure so to do it is liable in tort to a person thereby injured. This has been declared a corporate,

Appeal from Circuit Court, Jefferson Coun- rather than a public duty, and its officers or ty; J. C. B. Gwin, Judge.

Action for damages by Vivian Barnett, a minor, suing by her next friend, Nora Barnett, against the City of Bessemer. From

a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Bumgardner & Wilson, of Bessemer, for appellant.

J. A. Estes, of Bessemer, for appellee.

BOULDIN, J. The action is for damages for personal injuries. The case made by the complaint is, in substance:

Plaintiff was on a sidewalk on a public street in the city of Bessemer. The municipality was using a tractor with grader attached in grading or working the street. A

shelter or structure over the sidewalk was supported by upright posts near the curbstone. The street-working machinery struck and knocked down these supports, causing the overhead structure to fall upon the plaintiff, and inflict the personal injuries for which she sues.

The first count ascribes the injury to the negligence of defendant in allowing the street near the curbstone to remain, for an unreasonable time and with the knowledge of defendant's officers or agents, in a damp, marshy, and unsafe condition for the use of the street machinery, and, with such knowledge, negligently causing or allowing such machinery to be used at such place, and as a proximate consequence the wheels of the machine sank into the marshy place, skidded or tilted, and struck the posts, causing the shelter to fall, etc.

The second count ascribes the injuries to the negligence of defendant's officers or agents, acting within the scope of their employment, in failing to use due care, skill, and diligence, with a knowledge of the condition of the street and sidewalk, and of the position of the plaintiff.

The evidence tended to support the several averments of the complaint. It is without dispute that the grader or dresser being used in working the street was, as the time, being operated by the street superintendent of the city of Bessemer in person.

[1, 2] The chief point stressed in argument is that the officers and employees of the street department, while engaged in repairing a public street are public officers or employees acting in a governmental capacity, for which act the city is not liable. Is has long been the settled law of Alabama that

agents to be engaged in a ministerial, rather than a governmental, function, in the performance of this service. City of Bessemer v Whaley, 187 Ala. 525, 65 So. 542; City of Birmingham v Mulier, 197 Ala. 554, 73 So. 30.

In City of Selma v. Perkins, 68 Ala. 148, it was said:

"If an individual suffers injury from the negligent performance of this duty, the city is answerable to him in damages. Smoot v. Mayor of Wetumpka, 24 Ala. 112; City Council of Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562; Albrittin v. Huntsville, 60 Ala. 486, 31 Am. Rep. 46. If the courts of other states find it consistent with their system of jurisprudence to adopt a different view of the measure of the liability of municipal corporations, it furthe settled law of this state." nishes no reason or authority for a change of

[3] This is a continuing duty, not suspended while the street force is engaged in working the streets. The liability exists for the negligent performance as well as the nonperformance, of this duty. In the early case of Smoot v Mayor of Wetumpka, 24 Ala. 112, 121, it was said:

"We are of opinion that there is, in such cases, no solid distinction between a tortious neglect of a known, defined duty, which is of such a character as not to involve governmental powers, and the performance of such a duty in so unskillful, and negligent a manner as to cause particular or extraordinary injury to another. The consequences to the party injured feasance or nonfeasance." are the same, whether they result from mis

[4] Nor is the case different where the superintendent of streets is personally in charge of the work or the person whose negligent act or omission caused the injury. The test is the service in which the officer is engaged, and not his title or relation to the governing body. There can be no reason for holding a municipal corporation responsible for the act of a subordinate agent or employee, and not responsible for the act of the superior engaged in the same service.

Even where a police officer is charged with the duty to remedy defects or report same to some other officer, as to such service, he is deemed a ministerial agent, for whose negligence the municipality is answerable in its corporate capacity. City of Birmingham v. McKinnon, 200 Ala. 111, 75 So. 487; 19 R. C. L. §§ 391 and 392.

There is no need now to re-examine the ground on which the liability is imposed, nor to differentiate the various cases of non

(102 So.)

liability for official action. It is part of the jurisprudence of Alabama, long established, and now recognized by statute. Code 1923, 2029; Code 1907, § 1273.

The testimony touching the existence of the marshy place in the street and its long continuance, in connection with evidence of working the street from time to time, made it a question for the jury whether the officers and agents knew of such condition, not merely ought to have known it. though the complaint went farther than necessary in averring actual knowledge, the evidence warranted a refusal of the affirmative charge for defendant on that issue.

Al

Section 1275 of the Code of 1907 (section 2031, Code 1923) required, as a condition precedent to recovery, the filing with the clerk of a sworn statement of the claim. This statement must state "substantially the manner in which the injury was received, and the day and time, and the place where the accident occurred, and the damages claimed." The question here raised as to the sufficiency of the claim filed is directed to its statement of the manner in which the injury was received.

The statement filed alleged that the street was in "a defective and unsafe condition," and "as a proximate consequence thereof the wheel of said scraper or grader next to the sidewalk sank, or slid, or tilted toward the sidewalk and struck and caused the said awning or shelter to fall," etc. The complaint alleged the street was "in a wet, damp, and defective and unsafe condition," etc. The point made is that there is a variance between the claim and the complaint, and that the quoted statement from the claim is too general.

[5, 6] The purpose of the filing of the claim is to advise the municipality of the accident for the purpose of investigation and adjustment without suit. The claim is sufficient if it sets out the matters named in the statute in such substantial way as to accomplish this purpose. Technical accuracy is not required, neither is it necessary to set out the particular negligence relied upon. For example, it would have been sufficient here to state that the street force in operating the street machinery knocked the awning down upon plaintiff at the time and place named. City of Birmingham v. McKinnon, 200 Ala. 111, 75 So. 487. There was no material variance between the claim filed and the complaint in this regard. The amendment to the claim filed after the expiration of six months from the date of the injury, ascribing the injury to the negligence of the city in suffering the awning to be maintained over the sidewalk, was not counted upon in either count of the complaint. No question arises as to the propriety of amend

ments to such claims, nor the date when allowable.

[7] The allowance of leading questions in the examination of witnesses is in the discretion of the trial court.

The judgment of the court below is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

UNITED STATES CAST IRON PIPE &
FOUNDRY CO. v. FULLER. (6 Div. 82.)
(Supreme Court of Alabama. Oct. 16, 1924.
Rehearing Denied Nov. 27, 1924.)

1. Master and servant 361-Count held not demurrable as showing plaintiff to have been defendant's employee, and within Compensation Act.

Count of complaint alleging that plaintiff was working in defendant's clay pit, not as employee of defendant, but by his invitation and consent, held not demurrable as showing plaintiff to have been defendant's employee, whose exclusive recourse was under Workmen's Compensation Act (Laws 1919, p. 206).

2. Master and servant 316(1)-One contracting to furnish clay held independent contractor.

One contracting to furnish clay, for which he was paid by load, to mud mill of foundry company, which saw that clay delivered was of right sort, required, in general way, that enough be furnished to keep mill at work, and employed engineer, who occasionally looked over digging of clay, held independent contractor.

3. Negligence 52-Employee of independent contractor held entitled to warning of danger known to owner of premises.

Laborer injured by cave-in while working in clay pit for independent contractor held not bare licensee but either invitee or licensee serving interest of pit owner, which owed him duty to warn him of any danger, of which it knew or should have known, and of which he

was unaware.

4. Negligence 52-Duty to warn invitee or licensee depends on circumstances.

Duty of owner of premises to warn invitee or licensee serving owner's interest varies acof cording to character of danger, nature premises, and circumstances under which they are to be visited.

5. Mines and minerals

118-Mine owner's duty to keep mine reasonably safe extends only to conditions existing when turned over to contractor.

Duty of mine owner to employee of independent contractor, working therein to keep it in reasonably safe condition, extends only to conditions existing when turned over to contractor, not those arising from changes caused by progress of work contractor undertook to do.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

6. Negligence 121(1)—Burden on contrac-16 to 18 inches deep. The depth of the clay, tor's employee to show owner's negligence in which lay between the top soil and an uninviting him. derlying stratum of rock, is stated as being 6 to 9 feet. Plaintiff, appellee, was at work for Wilkinson, loading clay into a wagon, when the adjacent bank caved in upon him, causing the injuries on account of which be brought this action.

Burden was on independent contractor's employee, suing owner of clay pit for injuries from cave-in, to show defendant chargeable with negligence in inviting plaintiff therein. 7. Negligence 32(1)-Owner of premises held not negligent in inviting contractor's employee into dangerous place.

Owner of clay pit, in which laborer, who had worked for independent contractor for about three months, was injured by cave-in, danger of which was indicated by crack in top soil, observed, if at all, on day before accident, held not negligent in inviting contractor's employee into dangerous place.

8. Negligence

50-Owner of clay pit held not negligent in not re-examining dangerous part before return of contractor's employee thereto.

Owner of clay pit, to dangerous part of which independent contractor's employee returned after working in another part for several days, held not negligent in not re-examining premises and warning employee of danger of cave-in.

9. Negligence 52-Duty of owner of premises to warn contractor's employees stated.

To obligate owner of premises to warn contractor's employees of danger it must appear that owner was bound to do so by agreement with contractor or assumed obligation with knowledge of contractor or his employees, and that they relied on his doing so.

10. Negligence 50-Finding owner undertook to keep operation of clay pit safe or that contractor's employés relied thereon not warranted.

That owner's engineer looked over operation of clay pit by contractor held insufficient to warrant finding that owner undertook to keep operation of pit safe for contractor's employés, or that they relied, or had reason to rely, on such undertaking so as to charge owner with negligence because engineer observed dangerous condition.

Appeal from Circuit Court, Jefferson County, Bessemer Division; J. C. B. Gwin, Judge. Action for damages for personal injury by Uriah Fuller against the United States Cast Iron Pipe & Foundry Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Brenton K. Fisk, of Birmingham, for appellant.

Perry, Mims & Green, of Bessemer, and Black, Harris & Foster, of Birmingham, for appellee.

SAYRE, J. Appellant had a contract with one Wilkinson by which the latter was to mine and deliver to appellant clay for appellant's mud mill. The property from which the clay was taken was the property of appellant. The clay lay under a top soil

[1] The burden of defendant's demurrer to the third count of the complaint-all others having been eliminated-was that it showed plaintiff to have been an employee of defendant, and so that plaintiff's exclusive recourse was under the Workmen's Compensation Act (Laws 1919, p. 206). This demurrer was overruled, and properly so. The language of the count is:

"Plaintiff further alleges that

he

was engaged in work in the defendant's said clay pit, not as an employee of defendant, but by invitation of the defendant, and with the defendant's consent, and while so working," etc.

This language denies the demurrer.

[2] The evidence showed without dispute the time of the accident which resulted in or contrary inference that plaintiff was, at his injury, employed by Wilkinson as a day laborer. Wilkinson's contract was to furnish clay to defendant's mud mill, for which he was paid by the load. Defendant saw to it that the clay delivered to its mud mill was of the right sort; that is, contained not too much dirt, not too much of the top soil. Defendant had in its employment a safety engineer who overlooked all the operations conducted by defendant in the manufacture of pipe, and this engineer occasionally looked over the digging of clay by Wilkinson. Defendant required, in a general way, that Wilkinson furnish enough clay to keep its mill at work.

Otherwise than as stated defendant had nothing to do with Wilkinson's operations in the pit. These facts, very clearly in our judgment, establish the conclusion that Wilkinson was an independent contractor. Connors-Weyman Steel Co. v. Kilgore, 189 Ala. 643, 66 So. 609; Hubbard v. Coffin & Leak, 191 Ala. 494, 67 So. 697; Sloss-Sheffield Co. v. Edwards, 195 Ala. 376, 70 So. 285, and cases cited.

[3] It is alleged in the complaint that"The said clay pit was dangerous and liable to cave upon a person employed as plaintiff was, and which danger was not known to the plaintiff, but which danger and the ignorance thereof of plaintiff was known to defendant, or by the exercise of reasonable diligence should have been known to the defendant, and the defendant negligently failed to warn the plaintiff of such danger, and as a proximate consequence of such was in a place dangerous to such cave, or may negligence on the part of defendant plaintiff be liable to occur, and while in such position such cave-in did occur, casting the earth and clay upon plaintiff, and the injuries alleged,

(102 So.)

which was a proximate consequence of Judge Cooley in Samuelson v. Cleveland the defendant's negligence in failing to warn Iron Mining Co., 49 Mich. 164, 13 N. W. plaintiff of such danger." 499, 43 Am. Rep. 456, where authorities were cited and the principle declared to be very just and very familiar. Frequently we encounter the formula:

Plaintiff had been in the employment of Wilkinson for some time. The accident happened late in the afternoon of Tuesday. Work at the particular place where plaintiff was hurt had been suspended on the preceding Thursday. When plaintiff was sent back to work at that place, under instructions by Wilkinson he worked, not on the face of the surrounding bank of clay, but on the bottom of the pit. His work on that occasion, it seems, had nothing to do with the caving in of the bank. At that point the pit was 7 or 8 feet deep, and the clay had been dug back under the surface about 18 inches, leaving an overhang of that much. We quote from appellee's brief:

"The testimony all showed that this was not in itself an apparently dangerous condition. It would appear ordinarily strong enough to stand without falling But it appeared upon this occasion and at this place that there was on the surface a crack about 2 inches wide and several inches deep, about 18 inches from the edge of the soil overhanging this pit. The crack was not observable by one in the pit. It was shown that the defendant's safety engineer was at that point that very morning, looking around and talking and attending to his duties of protecting the people who were upon the premises of the defendant. He testified that there was no such crack there. He further testified that, if there had been such a crack there, it would have been dangerous. He further testified that, if he had seen any such crack there, he would have notified the employees in the pit."

Plaintiff testified that he did not know of the crack; that he was ignorant of the danger; and that he was not warned against it. In these circumstances the bank of clay caved in, falling on plaintiff.

Whether plaintiff be considered as an invitee of defendant (Tenn. Co. v. Burgess, 158 Ala. 525, 47 So. 1029) or a licensee serving in part the interest of defendant (SlossSheffield Co. v. Edwards, 195 Ala. 376, 70 So. 285), clearly he was not a bare licensee -defendant's duty to him has been thus stated by the eminent Judge Cooley in Powers v. Harlow, 53 Mich. 507, 19 N. W. 257, 51 Am. Rep. 154:

"The owner or occupant of premises, who induces others to come upon it by invitation, express or implied, owes them the duty of using reasonable or ordinary care to keep the premises in a safe and suitable condition so that they will not be unnecessarily or unreasonably exposed to danger." 29 Cyc. 453; 21 Am. & Eng. Enc. Law (2 Ed.) 471, cited in Tenn. Co. v. Burgess, supra.

This court in the Connors-Weyman Case, supra, as the result of cases consulted and cited, has said

"that a mine owner, who, for some benefit to himself, procures the working of his mine, even by an independent contractor, and therefore impliedly invites such contractor and his employees to enter and use such mining premises, is liable to them for personal injuries resulting from any condition of the premises which is inherently dangerous, if the owner had knowledge or notice of such condition and the contractor or his employees had not."

[4] But, as this court observed in Tenn. Co. v. Burgess, supra:

"It is obvious that the duty must vary according to the character of the danger, the nature of the premises, and the circumstances under which they are to be visited."

[5-7] In that case it was noted that the evidence went to show that it was the duty of the mine owner to inspect the roof of the mine as the work of mining progressed-upon what consideration does not appear. But in the later case of Sloss-Sheffield Co. v. Edwards, supra, a case in which the plaintiff, injured in the progress of mining operations, was employed by an independent contractor, as here, this court held-and very correctly, as we think-that the duty which the owner owed to the employees of the contractor to keep its mine in a reasonably safe condition extended only to conditions existing when the mine was turned over to the contractor for mining, and not to conditions arising out of changes caused by the progress of the "A person giving such a license, especially work the contractor undertook to do. Other when he gives it wholly or in part for his own cases to the same effect were there cited. interest as was the case here, and thereby in- Here, as was the case in Samuelson v. Clevevites others to come upon his premises, as-land Iron Mining Co., supra, we search the sumes to all who accept the invitation the duty to warn them of any danger in coming, which he knows of, or ought to know of, and of which they are not aware."

record in vain for any evidence that defendant is chargeable with negligence in inviting miners into a dangerous mine. Appellee's brief assumes that the burden of proof as to This statement of duty in cases like this this was on defendant, but there can be no has been approved by this court in Sloss doubt that in this, as in all material reIron & Steel Co. v Tilson, 141 Ala. 161, 37 So. spects, the burden rested upon plaintiff to 427, and Republic Iron & Steel Co. v. Luster, make out his case. The accident causing 192 Ala. 501, 68 So. 358. This principle had the injury to plaintiff happened in the latbeen previously examined at length by ter part of November, 1922. Defendant had

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