Under the issues made by the pleading the burden of proof was on the plaintiff to not only prove the defect in the street as alleged- in his complaint, but also to establish that the defendant had either actual or constructive notice of it- a,t the time of the injury complained of.- — City Council v. Wright, 72 Ala. 411; Town of Cullman v. McMinn, 109 Ala. 614. The evidence, was in conflict as to Avhether there Avas any defect at all in the street where the plaintiff was injured. There is no evidence in the record that the defendant, had prior to the accident, any actual knoAvledge of the existence of the defect if it, in fact, existed. And clearly the eAddence is not of such character as *210would have authorized the. court as matter of law, • to have presumed that the defendant had constructive notice of it. Charge 5, requested by plaintiff was, there-' fore, properly refused. The other written charges refused to plaintiff -are not insisted upon. But if they were, there was palpably no error in their refusal.
There was no error in sustaining the objection to the question propounded to Dr. Coley. If the purpose of the question was to show that Dr. Maxwell was thrown from his buggy by reason of the defect in the street of /which the plaintiff complains, the objection was properly sustained 'under the principle declared in Mayor and Aldermen v. Starr, 112 Ala. 98.
So likewise there was no error in excluding the testimony of Thompson as to the condition of the street some days subsequent to the (late that the plaintiff was hurt, in the absence of all proof that such condition has remained unchanged since, at or prior to the date of the injury. — Birmingham Union R. Co. v. Alexander, 93 Ala. 133.
The comment of counsel for plaintiff in argument, excluded by the court upon objection, was upon a fact which was not in evidence and which was not and could not be legally competent and admissible as- evidence.- — McAdory v. The State, 67 Ala. 154; Wolffe v. Minnis, 74 Ala. 386; E. T. V. & G. R. Co. v. Bayliss, 75 Ala. 466; L. & N. R. R. Co. v. Orr. 91 Ala. 549.
Affirmed.