Under the present statute a bill of exceptions will not be stricken nor disregarded because not "presented or signed" within the time required by law, except on motion of a party to the record or his attorney. If such motion is not made at or before submission, the objection is waived. Code, § 6434.
This is a companion suit to City of Albany v. Black, 214 Ala. 359,108 So. 49 — an action for personal injuries resulting from the collision of an automobile with a rope stretched across a public street under direction of the mayor and superintendent of streets. The former action was by Hosie Black, the driver of the car, the present action by Martha Black, his wife, who was riding with others on the back seat of the car.
The present complaint contains three counts. Count 1 is the same as count 7, and count 3 the same as count 5, in City of Albany v. Black, supra, except in one respect, viz., the present counts fail to aver in terms that the accident occurred "in the nighttime." Count 1 alleges the injury was received on "the evening of December 25, 1922." The same averment is by reference carried into counts 2 and 3. All the counts lay the injury to the negligent failure to place or maintain guards, lights, or other warning to travelers in the nighttime. Without dispute in the evidence, the accident occurred in the early part of the night.
Taken as a whole, these counts reasonably import that "evening" is used to designate the period between sunset, or the evening meal, and ordinary bedtime, one of its accepted meanings in common parlance (Webster's New International Dictionary, "Evening"), and that the injury occurred at night during this period. It was not subject to demurrer for uncertainty as to the time of the injury. Moreover, the demurrer does not specially point out the alleged defect insisted upon in the argument, The other grounds of the demurrers to counts 1 and 3 were ruled against the appellant in the Hosie Black Case, and we need not further consider them.
Count 2 "avers that the defendant negligently allowed a defect to be and remain in Sherman street at the place above alleged, said defect consisting of the fact that a rope was stretched across Sherman street from the north side to the south side thereof, without being properly guarded or without maintaining notices or warnings thereon, so as to be observed by a traveler, in the nighttime, thereby making said street unsafe for a traveler in an automobile"; that her injuries resulted from the automobile in which she was riding being driven by Hosie Black into such rope. By reference to count 1, plaintiff's injury is alleged to have been received "as a proximate consequence of the negligence of the defendant, or its agents, servants, or employees, acting within the line or scope of their employment."
That the defendant "negligently allowed a defect to be and remain" in the street imports that the defect had existed sufficiently long to have been discovered and remedied by the exercise of due care. City of Montgomery v. Ferguson, 207 Ala. 430,93 So. 4; Lord v. City of Mobile, 113 Ala. 360,21 So. 366; City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48. The demurrer to count 2 was overruled without error.
No particular form of verification is prescribed for the "sworn statement" to be filed with the city clerk under Code, § 2031 (1275). The recital that plaintiff "makes oath that the following facts are true," then setting out the matters required by law, subscribed by plaintiff, and attested, "sworn to, and subscribed before me this 24th day of January, 1923, Jas. H. Martin, Notary Public," is sufficiently verified.
We do not construe the complaint, or either count thereof, as counting upon a defect in the street due to unlawful closing of the street, but the negligent manner of doing it — stretching a rope, without proper warnings of a barrier of that kind, in the nighttime. Neither the authority or charter power of the municipality to create a quiet zone by closing the street near the home of a sick person as a temporary emergency, nor the existence of such emergency at the time, is in issue. Hence, evidence of such sickness in fact, the extent of it, and the annoyance *Page 6 of passing vehicles, was immaterial. In no event could plaintiff recover except upon evidence of want of red light signals, sufficient in number and properly placed, or other adequate warning of the presence of the obstruction. That a red light properly placed at night upon a public street is a danger signal is of common knowledge. No proof of such fact was required. If not common knowledge, it would not be a sufficient warning to the public.
The Hosie Black Case, 214 Ala. 359, 108 So. 49, was reversed for refusal of the affirmative charge to defendant on count 5, the same as count 3 in the case at bar. The pertinent provisions of this count are set out in the former opinion. Reversal was for entire want of evidence tending to prove the averment that in placing the rope across the street the mayor and superintendent of streets were acting within the line and scope of their employment. A further study impresses us this view is incorrect.
As well said in the former opinion:
"The street superintendent was, as to the duty of removing obstructions from the streets, and protecting travelers from the danger of collision with such an obstruction as this rope, the alter ego of the city; and his knowledge of the presence of the obstruction was, in law, the knowledge of the city."
And again:
"Placing obstructions on the streets was in violation of his duty to remove them."
The duty to remove obstructions as an element of danger to the public is but a part of the wider duty to maintain the streets in a safe condition. It has been long established that the general duty to keep the streets safe applies to acts of commission as well as omission. Smoot v. Mayor of Wetumpka,24 Ala. 112; City of Bessemer v. Barnett, 212 Ala. 202,102 So. 23.
We are not dealing with the question of authority to erect such obstructions, but the line and scope of employment. In many cases, an agent is within the scope of his employment although the particular act is opposed to the direct instructions of the principal. To say one charged with the general duty to keep the street safe is without the scope of employment when he renders it unsafe, but is instanter within the scope of employment in failing to undo his act, presents an anomaly.
As before stated, the causal negligence counted on, and to which the trial was directed, related to the unsafe condition, not because of the erection of the obstruction nor failure to remove same, but failure to guard or place such warning signals as to remove the element of danger to the public.
It is doubtful whether the averments in question should not be treated as mere surplusage, but assuming, without deciding, that their incorporation in the complaint made them material and required proof thereof, we conclude there was no lack of proof, and the affirmative charge on count 3 was properly refused.
We think there is another reason why this charge was refused without error. Where several counts state a like cause of action based on the same alleged negligence, but one count contains additional unnecessary averments and there is a general verdict, it should not be reversed for failure to prove such unnecessary allegations.
No injury results in such case. The case is different when a count wanting in necessary averments is sustained against apt demurrer, and submitted with goods counts, and there is a general verdict. The jury may have based the verdict on the defective count.
The further questions presented for review are sufficiently covered by the principles of law applied to similar facts in the case of Hosie Black, supra. A further discussion is not deemed necessary.
Affirmed.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur in the opinion.
SOMERVILLE, GARDNER, and MILLER, JJ., concur in the result only.