Action on the case by appellee against appellant for personal injuries alleged to have been received in consequence of an automobile in which she was riding, "running or falling into an open ditch," in the intersection of Division Avenue and 65th Street, in the City of Birmingham, resulting in a verdict and judgment for the plaintiff.
The gravamen of the complaint is negligence on the part of the defendant in "permitting said open ditch to be or remain insaid highway," and is predicated on the last clause of Section 502, Tit. 37, Code 1940, which, so far as here pertinent, provides: "No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, * * * unless the said injury or wrong was done or suffered through the neglect, carelessness, or failure to remedy somedefect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council, or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council, * * *." (Italics supplied.)
It is settled law that said section of the Code declares the extent and limits of the liability of municipalities, and excludes all others not embraced within such limits. City of Bessemer v. Chambers, 242 Ala. 666, 8 So.2d 163; McSheridan v. Talladega, 243 Ala. 162, 8 So.2d 831.
The evidence is without dispute that 65th Street is a two-lane highway, each of said lanes being 25 feet in width, leading along the right-of-way of the Louisville Nashville Railroad, and running parallel with it. The railroad right-of-way at this point is 60 feet in width, with an embankment rising above the level of the east lane of said highway from two and one-half to three feet, and on which the railroad company maintains three operating tracks. This right-of-way is not a part of 65th Street. The alleged ditch leads south, along the "toe" of the railroad's embankment, parallel with it, into a culvert or conduit, and is just on the margin of the said east lane of 65th Street, and is a drain to carry water from the east side of the railroad tracks, through said culvert, and empties into an open ditch on the west side of the railroad tracks. Said ditch has existed for thirty-five years or more as a drain for the railroad right-of-way.
Division Avenue is a gravelled highway thirty feet in width, leading into the east lane of 65th Street on the opposite side from said ditch, more than twenty-five feet from the east margin of said east lane. Here the traffic proceeds to the north or the south. Division Avenue does not cross said ditch, nor the railroad right-of-way, nor does said ditch touch Division Avenue at any point. There is no street easement or right-of-way across said railroad tracks. Louisville N. R. Co. v. Malchow, 216 Ala. 656, 114 So. 53; 16 U.S.Stat. p. 580.
On the opposite or west side of the railroad right-of-way and tracks, the other part of Division Avenue, leading west, touches the west lane of said 65th Street, where traffic may turn to the north or south, as may be desired. There is no ditch or other defect in said Division Avenue, or the east lane of said 65th Street, both being graveled highways; and Division Avenue is straight for a considerable distance east of said east lane of 65th Street. Said ditch and the embankment of the railroad tracks are open to ordinary observation to persons using the streets for ordinary travel along the same. No barriers or lights were erected or maintained along said ditch and said west lane opposite the point where Division Avenue touches the east lane of 65th Street, either by the City of Birmingham or the Railroad Company. There is an absence of testimony showing or tending to show that said ditch in any way renders *Page 658 said east lane of 65th Street unsafe to usual travel, or that it increases the hazard of such travel, or that said 65th Street, at this point, was not reasonably safe for such travel. The evidence shows that plaintiff's husband, while driving his car, in which plaintiff, his wife, was riding as a passenger, along said Division Avenue, on a rainy night, at about 30 miles per hour with dim lights, and poor visibility, drove the same across said east lane of 65th Street into said ditch, resulting in her injury, the predicate for her claim for damages.
Conceding that the junction of Division Avenue and the east lane of 65th Street constitutes an intersection of said highways, it is too clear to permit of controversy that the alleged ditch is not located in the intersection of said highways, and there is a failure of proof to sustain the averment of the complaint and the notice, which is made a part thereof. Bankers' Mortgage Bond Co. v. Sproull, 220 Ala. 245,124 So. 907. Both the notice and the count of the complaint, on which the case was tried, place the open ditch in the street. City of Birmingham v. Jeff, 236 Ala. 540, 184 So. 281; City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818; Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; Code 1940, Tit. 37, § 504.
If said ditch was in the street — the lane of travel — provided by the city for the use of the public, and the city had notice thereof, or it had existed for such length of time as to raise the presumption of notice, and negligently failed to close it up and make it reasonably safe for public travel, the city would be liable as a matter of law, under the statute which we have quoted. City of Birmingham v. Smith, 231 Ala. 95,163 So. 611.
On the other hand, if said open ditch was located along the margin of the east lane of 65th Street, and the railroad right-of-way, and its existence did not render the streets at this point unsafe to ordinary use and travel, no duty rested upon the municipality to place guards or warnings or lights thereon. City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818; Roberts v. Town of Eaton, 238 N.Y. 420, 144 N.E. 667, 36 A.L.R. 411, 412, and annotations, 413-415; City of Dallas v. Maxwell, Tex. Com.App., 248 S.W. 667, 27 A.L.R. 927, and annotations, 937-941; McCracken v. Curwensville Borough, 309 Pa. 98,163 A. 217, 86 A.L.R. 1379, and annotations; 13 R.C.L. p. 425, § 348; 25 Amer.Juris. 815, § 532.
In City of Birmingham v. Cox, 230 Ala. 99, 101, 159 So. 818,819, it was observed: "There is no absolute duty upon a municipality to provide guard rails or barriers at or near an open ditch, sewer, or drain (volume 7, McQuillin on Municipal Corporations (2d Ed.) p. 204, § 2984), unless the place is dangerous and alongside the street, which without such protection will render that highway unsafe to travelers in the usual modes. * * *"
In Roberts v. Town of Eaton, 238 N.Y. 420, 144 N.E. 667, 36 A.L.R. 411, in which an automobile turned over down an embankment on the margin of the highway, the New York Court of Appeals, speaking by Pound, J., observed:
"The town was not bound to exercise extraordinary care to guard against unusual accidents. 'The limit of duty on the part of a town with regard to the condition of its highways falls far short of making them absolutely safe, under all circumstances, even for those who use them properly.' Lane v. Hancock, 142 N.Y. 510, 521, 37 N.E. 473, 476.
"The risk here was not enhanced by the lack of any ordinary barrier. It arose out of a combination of unforeseen circumstances against which the exercise of ordinary care would have afforded no protection.
"The rule of duty in such cases is one of reasonableness. While the general use of motor vehicles has developed a new class of risks, it is not incumbent on the town to anticipate and guard against every danger that may attach to the operation of automobiles over country highways. To impose on towns the burden either of constructing substantial barriers at every point of possible danger or of paying damages when unusual accidents occur which such barriers might have prevented would be to advance the present measure of liability beyond the rule of ordinary care into the field of insurance against accidental injury or death."
The evidence is subject to a single inference, and that is, that the plaintiff's husband, assuming that street continued across the railroad tracks, proceeded on that assumption, and drove the automobile a cross said east lane into the ditch; and if there had been no ditch at the point, he would have driven the automobile into the embankment of the railroad's right-of-way, *Page 659 with probably the same consequences. His negligence was the sole proximate cause of plaintiff's injury. City of Birmingham v. Smith, 241 Ala. 32, 200 So. 880.
I, therefore, respectfully dissent.