Counts 1, 5, and 7 of the complaint, upon which the case went to the jury, sufficiently state a cause of action, *Page 361 and are not subject to any of the grounds of demurrer interposed.
When an intentional obstruction of a public street is charged as the act of the municipality itself, the question of notice to the municipality of the existence of such an obstruction, as an element of liability to one injured thereby, is wholly immaterial. 28 Cyc. p. 1387, § 3.
The material facts relating to the obstruction complained of are as follows:
In order to protect a sick man from the annoyance of passing vehicles, the street superintendent of the defendant municipality, acting under an order from the mayor, stretched a rope across Sherman street, a a much-traveled city highway, so as to prevent the passage of vehicles along the street and by the sick man's residence located thereon. The rope was so placed on Christmas morning, 1922. It was a three-fourth inch grass rope, fastened firmly to trees and posts at either side of the street, so as to hang 4 or 5 feet above the surface. The street was about 48 feet wide, a little more or a little less; and, as a warning to approaching vehicles, two lighted lanterns were hung on the rope at about 5 o'clock p. m.; one being placed on each side of the street about 12 feet from the curb, leaving about 25 feet in the middle without any warning light. The rope was located about 150 feet from the nearest street light, which was at the intersection of Sherman street and Tenth avenue.
The evidence showed without dispute that it was the duty of the street superintendent to "keep the streets open and free for the passage of the general public, and either report or fix any obstruction or defect; either fix it or report it to the city council."
Defendant's contentions are: (1) That there "is no evidence to show that the act in question was authorized by the municipality, or was done by one of its authorized agents; (2) that, in any case, the obstruction of the street in the manner and under the circumstances shown was not authorized by law, and hence the municipality could not be held liable for the act of its agents in the premises; (3) that, even though the city could be legally responsible for this act of its agents, yet the evidence shows that proper and sufficient warning of the obstruction and of its danger to travelers was given by the two lanterns suspended from the rope; (4) that this municipality had no notice of the existence of the obstruction, or of the absence of sufficient warning signals, either actually or constructively, by the lapse of sufficient time to charge it with knowledge and responsibility; and (5) that plaintiff was guilty of contributory negligence, either (a) in not seeing the warning signals, and so avoiding the collision with the rope, or (b) in driving over the street at a speed in excess of the maximum rate of speed prescribed by a municipal ordinance.
It must be conceded that there is nothing in the evidence tending to show that the city council authorized the closure of this street or directed the street superintendent to place the obstructive rope as it was placed. It is therefore unnecessary to consider the power of the city government in the premises; that is, whether it might lawfully, in the exercise of its discretion, cause the temporary closure of the street in order to protect a sick person, domiciled on abutting premises, from the annoyance of passing traffic. See, however, City of Lawrenceburg v. Lay, 149 S.W. 862, 149 Ky. 490, 42 L.R.A. (N.S.) 480, Ann. Cas. 1914A, 1194, and note, page 1197, citing, affirmatively, Anderson v. Wilmington, 43 A. 841, 2 Pennewill (Del.) 28; 13 R. C. L. 224, § 189.
The trial judge instructed the jury that the city might lawfully close a street temporarily for the purpose stated, and neither party excepted to that instruction.
The questions of facts submitted to the jury were: (1) Whether the city had notice of the existence of the obstruction, as placed by its street superintendent, in time to remove it or to give to night travelers sufficient warning of its presence; (2) whether the two lanterns placed as above shown were a proper and sufficient warning; and (3) whether plaintiff exercised ordinary care in driving his car along this street, so that the injury he suffered from collision with the rope was not due to his own contributory negligence.
The two latter questions are really one under the evidence in this case, since, if the warning signals were proper and sufficient, plaintiff was bound to take notice of them; and, whether he actually saw and understood them or not, the city would not be liable for resulting injury.
Conceding that the street superintendent was without authority to place the obstruction, yet it is clear that as soon as he did place it his knowledge became the knowledge of the city, and it became the duty of the city to either remove the obstruction or to give proper warning of its presence. Bradford v. Anniston, 8 So. 683, 92 Ala. 349, 351, 25 Am. St. Rep. 60; Whitfield v. Meridian, 6 So. 244, 66 Miss. 570, 4 L.R.A. 834, 14 Am. St. Rep. 596, and note; note, 103 Am. St. Rep. 282; note, 20 L.R.A. (N.S.) 697; 13 R. C. L. 345, § 283.
As declared in Kearns v. Mobile L. R. Co., 71 So. 993,196 Ala. 99, as a general rule, "the sufficiency of signals or barriers to give reasonable warning of or security against existing danger [from defects in a street], especially with respect to their character, number, and arrangement, is a question of fact for the jury."
We think that the question of the sufficiency of the warning signals shown to have been stationed in this case was one of fact for the jury; this in view of the width *Page 362 of the street, and the placement of the lanterns so as to leave about 25 feet of space without any warning of the obstruction.
Several charges requested by defendant denied plaintiff's right to recover, if the obstruction was "reasonably marked by lighted lanterns." These charges were defective in their omission of any definition of what was intended by the quoted phrase; i. e., that the lights must have been of such number, character, and placement as to be plainly visible as warnings of danger to any traveler of ordinary vision who might approach the obstruction with his eyes open. If the warning lights met those requirements, it was immaterial whether plaintiff actually saw them or not; otherwise there would be no liability, unless the lights were actually seen and their warning understood.
Several requested charges were misleading in their implication that plaintiff was bound to exercise diligence to discover the obstruction in time to prevent a collision, without reference to the sufficieny of the warning signals, and without explanation of the traveler's duty to use due care. He was not bound to anticipate and search for obstructions, but only to look ahead with his eyes open, and to see what ordinary vision would necessarily see. The issue of contributory negligence was in fact fully covered by the general oral charge.
Under our view of the law as above set forth, the liability of the city did not depend upon actual notice to the city council. 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. The requested instruction that this injury was not suffered through the fault of any agent or officer of the city was therefore properly refused.
For the same reason we condemn a requested instruction that the time elapsing between "late in the afternoon," when it assumes the rope was placed, and "7 or 8 o'clock," when the accident occurred, does not raise any presumption of notice to the council that the rope was there. Moreover, the only testimony on the subject was that the rope was placed across the street on Christmas morning, so that the charge was abstract, and was properly refused for that reason.
The plaintiff testified that he was driving at a speed of 8 or 10 miles an hour, and was looking ahead, and that he did not see the rope nor lights. There was no evidence to contradict plaintiff's testimony in this regard. As to counts 1 and 7, the general affirmative charge for defendant was properly refused.
We think, however, that count 5 was not supported by any evidence of a material allegation, and that, as to that count, the general affirmative charge for defendant was erroneously refused.
Count 5 alleges that "the agents, servants, or employees of the defendant, acting within the line or scope of their employment, placed a rope across Sherman street," etc., and the evidence failed to show that Street Superintendent Penney, who thus placed the rope, was so acting, for placing obstructions on the streets was in violation of his duty to remove them. True, the mayor of the city authorized or directed him to do as he did; but there is nothing to show that, as mayor, he had any such authority, and it cannot be presumed as a matter either of law or of fact.
It may be that the jury found for plaintiff upon that issue alone, and because of the mayor's supposed authority to give such an order to the street superintendent; and there was nothing in the general oral charge to save them from such a finding.
For this error, which was probably prejudicial to defendant, the judgment will be reversed and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and MILLER and BOULDIN, JJ., concur.