
    Abbott v. City of Mobile.
    
      Action for Personal Injuries Resulting from Defective Side-walk.
    
    1. General affirmative charge; when -properly refused. — Where there is evidence from which the jury may, by reasonable inference, reach a conclusion opposed to the direct testimony of plaintiff’s witnesses, the affirmative charge is properly refused.
    2. dase at bar; relevancy of evidence. — Plaintiff’s evidence tended to show by direct testimony that a sidewalk was defective on the date of the alleged injury: Held, it is competent for defendant to show that it had been repaired about five months prior thereto, and that some two weeks after the injury it was found intact.
    2. Evidence of extent of injury. — Plaintiff having testified that he ■ was permanently injured, and suffered in his arm, head, and groin, it was competent for defendant to show that five months after the injury he applied for a position to do police duty, requiring much walking.
    
      4. Exception to charge of the court. — Section 613, Code of 1896, is limited to charges requested by the parties in writing. To entitle a party to a reversal for errors in the general charge of the court, an exception must be reserved.
    5. Duty of city in maintaining sidewalks. — A city is not held unqualifiedly to a knowledge of all defects in its sidewalks, but to a knowledge of those which may and would be discovered by the exercise of reasonable diligence and care.
    
      6. Amendmentj when too late. — An offer to amend a complaint after tbe jury have retired and agreed upon, but not returned their verdict, comes too late. It-should be made before the. cause is finally submitted to the .iury.
    7. Remarles of counsel. — Overruling a motion for a new trial based on remarks of counsel on the trial, which were promptly withdrawn, and the .iury instructed not to consider them, is not ground for reversal.
    Appeal from Mobile Circuit Court.
    Tried. Before Hon. Wm. S. Anderson.
    John H. Abbott sued tbe City of Mobile for personal injuries resulting from a defective sidewalk, alleging ■ in bis complaint that tbe sidewalk “ivas left by said city in an unsafe, impassable and dangerous condition, wbicb unsafe, impassable and dangerous condition of said street was well known to said defendant and without proper protection or notice to citizens and travelers against accidents; that tbe plaintiff on or about tbe date aforesaid, towit: October 15th, 1896, was lawfully traveling on said walk and wholly unaware of its unsafe condition and of danger, was accidentally and without fault or negligence on bis part tripped up on tbe obstructions to said sidewalk and thrown violently to the ground, whereby be received great bodily injury.” etc. Tbe court in bis' oral charge instructed the jury ex mero motu as follows: “If you find it is true as plaintiff has alleged, that he was injured by reason of tbe negligence of the city, in allowing this sidewalk to remain in an unsafe, impassable and dangerous condition, and that be was using ordinary care in passing along tbe streets, why then be would be entitled to recover. If tbe evidence fails, gentlemen, to establish — to satisfy your minds rather — that tbe city left or allowed tbe sidewalk to remain in an unsafe, impassable and dangerous condition, or that plaintiff did not usé even ordinary care, why then the plaintiff couldn’t recover.”
    Tn conclusion tbe court said: “If tbe evidence does not satisfy your minds reasonably that the plaintiff was injured as be has set out in bis complaint, why then you should find for tbe defendant.”
    After tbe case was submitted to tbe jury who bad retired and agreed upon a verdict, but before it bad been received tbe plaintiff moved the court to amend tbe complaint by striking therefrom tbe word “impassable.” The court overruled the motion, and plaintiff excepted. During the examination of plaintiff, his counsel asked him: “And you fell on your full length on your left side?” Defendant’s counsel objected to the question as leading and remarked: “Let him state the facts — of course he will state yes to any question you ask him.” Plaintiff’s counsel excepted to this remark and requested the court to rule it out. Defendant’s counsel withdrew the remark, and also requested the court to instruct the jury to disregard, it.
    The court instructed the jury not to consider the remark.. . . . .
    The plaintiff moved the court to grant a, new trial, setting forth among other grounds the alleged improper ■remark of defendant’s counsel above. The court overruled the motion and plaintiff excepted.
    . The court, refused the following charges requested in writing by the plaintiff: 6. “The court charges t’he jury that a person passing along the public street of a city is under no obligation to keep a constant lookout for defects in the street, but may walk upon the sidewalk in the manner which persons ordinarily do, and if he is injured by a defect in the streets of which he has no knowledge, and which had existed long enough for the city to have known it, without fault on his part, your verdict must be for plaintiff.” 9. “The court charges the jury that under the undisputed evidence in this case they must find that the plaintiff was injured by reason of a defect in the sidewalk.” 7. “If the jury believe all the evidence in this case they must find a verdict for the plaintiff.” 4. “The court charges the jury that, if they believe the evidence they must find that the city was chargeable with notice of the obstructions to the sidewalk.”
    Thos. H. Smith, for appellant.
    Evidence that plaintiff applied to the defendant for employment is .irrelevant. — 1 G-reenleaf on Evidence, (15 Am. Ed.) 51a, 52. Evidence of the condition of the sidewalk in June previous to the injury Avas too remote. — 1 Green, on Ev., (15th Am. Éd.), 51, 52; Thrash v. Bennett, 57 Ala. 136; GaVbrewbh v. Cole, 61 Ala. 139. The words “unsafe, impassible, and dangerous,” ‘ were used in the. complaint distributively. On proof that the sidewalk was unsafe, plaintiff was entitled to recover. — L. & N. R R. v. Coul
      ter, 86 Ala. 131; A. G. 8. B. B. Co. v. Hill, 93 Ala. 524; A. G. 8. B. B. Co. v. Baily, 112 Ala. 177; L. cG N. B. B. Co. v. Mother shed, 97 Ala. 265; Highland Ave. & Belt Co. v. Dusenberry, 94 Ala. 417. Charges requested for plaintiff should have been given.- — 'Lord v. City of Mobile, 21 S. R. 368; Kelly v. Eyster, 102 Ala. 328; Carter v. Chambers, 79 Ala. 228; Bradford v. Mayor and City Council of Anniston, 92 Ala. 350; Albritton v. Mmjor and Aid. of Huntsville, 60 Ala. 495; Barker v. Dougherty, 111 Ala. 531-588; Bessemer Land Co. v. Jenkins, 111 Ala. 151; Johnson v. State, 102 Ala. 18. The court should have granted a new trial. — Cobb v. Malone, 92 Ala. 630; Florence Cotton & Iron Co. v. Field, 104 Ala. 480; Anderson v. State, 104 Ala. 84; L. cG N. B. B. Co. v. Fulghum, 91 Ala. 554 and 555.
    B. B. Boone, contra.
    
    It was proper on cross examination to show by plaintiff he was seeking employment as a policeman. — Martin v. Elden, 32 Ohio State, 282; Ingraham v. State, 67 Ala. 71; Stoodenmcyer v. Williamson, 29 Ala. 558. Plaintiff’s charge number 6, was 'properly refused.- — Hughes v. Anderson, 68 Ala. 280; Brewer v. Watson, 71 Ala. 299; City Council v. Wright, 72 Ala. 411.
    General charge asked by appellee should have been given, there being no evidence that the sidewalk was ever impassable, as alleged.- — B. B. Co. v. Johnston, 79 Ala. 436; Smith v. Cansey, 28 Ala. 655; B. B. Co. v. Dusenberry, 94 Ala. 416.
   COLEMAN, J.

The appellant instituted his action to recover damages for personal injuries sustained, resulting, as alleged, from a defective sidewalk of the city of Mobile. The defect of the sidewalk, as testified to by the plaintiff, consisted of a loose board or plank over a drain or ditch in the sidewalk, and he testified that as he was walking along the sidewalk on or about the 15th of October, 1896, being ignorant of the condition of the sidewalk, he stepped on the plank,"and that it rocked or turned with him and caused him to fall. The testimony of -the wife corroborated him, and she further testified that the edge of the plank was unsound, and that she observed the defect about a Aveek prior to the injury. The plaintiff objected to evidence offered by the defendant that in June previous the city repaired this drain, and had placed upon and over the drain a solid plank, fastened down. Standing alone, it may be that the evidence was too remote, but in connection therewith the city introduced evidence that during the same month of the injury, prior to October 27th and presumably after the injury, the city repaired the drain again, and that at that time the plank was solid and fast. It is true that the plank may have been made secure after the injury, and if this had been done, there would be no conflict in the evidence as to the condition of the sidewalk on the night of the 15th of October when the injury occurred. There is no direct evidence of such repairs. The conclusion lies in inference only, and the facts admit of-contrary conclusions. The evidence we think was properly admitted, and the court did not err in refusing to plaintiff the general charge.

The plaintiff testified that he Avas permanently injured by the fall, and that he suffered in his arm, head and groin. The defendant Avas allOAved to prove that in March afterwards he made application to do police duty in the city, and that he Avas so employed, and that his duties required him to Araik up and doAvn the street, and to preserve order, and such duty Avas performed. We do not regard this evidence as very important, but we are of opinion that it Avas competent to be considered on the question of the extent of the injury sustained.

There is no doubt there was error in the general charge given by the court ex mero motu, but to entitle a party to a reversal for errors in the general charge of the court, as distinguished from charges requested by either party, an exception must be reserved. Section 613 of the Code of 1896 (Acts 1894-5) applies to charges requested in writing and not to the charge given by the court. The record states that the leading counsel for the appellant in the trial court, expressed himself as satisfied Avit'h the general charge of the court, and it is eAldent that he was present at the time a portion of the general charge was repeated to the jury, and that he did not reserve an exception.

In addition to the criticism made by counsel Avho represent appellant on appeal, see the case of Torrey v. Burney, 113 Ala. 496, as to the legal significance of the word “satisfy” when used in an instruction to the jury.

Charge six requested by plaintiff is bad for the reason that the principle asserted imposed a greater liability upon the city than that required by the law. A city is not held unqualifiedly to a knowledge of all defects in its sidewalks, but to a knowledge of those which may and would be discovered by the exercise of reasonable diligence and care. The charge is faulty in that it imposed a liability, if the “defect existed long enough for 'the city to have known it;” that is, as we construe the charge, if by the exercise of the utmost care and watchfulness, it might have been known. This rule imposes too great a degree of care upon the city.

What has been said with reference to the rulings of the court upon the admission of evidence, sufficiently covers the other assignments of error relative to charges numbered four, seven and nine.

The amendment to the complaint offered to be made by the plaintiff, after the jury had agreed upon a verdict and brought it into court, but before it was announced, came too late. It should have been offered before the cause was finally submitted to the jury. — Mahan v. Smitherman, 71 Ala. 563.

The remark of counsel which is assigned as error was immediately withdrawn when made and expressly excluded by the court from consideration by the jury.

We find no error in the record available to appellant.

Affirmed.  