Summary
In Bryson v. Phelps, 220 Ala. 389, 125 So. 798, and Central of Georgia Ry. Co. v. Faulkner, 217 Ala. 82, 114 So. 686, it was held witness could not declare the issue being tried — that the road at the time and place was a public highway; McCullar v. Williams, 217 Ala. 278, 116 So. 137, where the question was incidental to the issue being tried, witness may state the road in question was a public highway.
Summary of this case from Acme Machine Welding Co. v. Home Industry WorksOpinion
3 Div. 918.
January 16, 1930.
Hill, Hill, Whiting, Thomas Rives, of Montgomery, for petitioner.
The title to the road was not involved in this case, and it was permissible for the witnesses to testify that the road was a public highway. McCullar v. Williams, 217 Ala. 278, 116 So. 137; Birmingham R., L. P. Co. v. Saxon, 179 Ala. 154, 59 So. 584; Paterson v. Patrick, 202 Ala. 365, 80 So. 445; Burkett v. Newell, 212 Ala. 183, 101 So. 836; Bynum Bros. v. State, 216 Ala. 105, 112 So. 348; Alabama Power Co. v. Jones, 212 Ala. 206, 101 So. 902; Milner v. Lewis, 20 Ala. App. 598, 104 So. 444. The courts judicially know that the Birmingham highway is a public highway, and no proof thereof is needed. Snyder Cigar Co. v. Stutts, 214 Ala. 134, 107 So. 73; Louisville N. v. Benton Mer. Co., 219 Ala. 223, 121 So. 716.
Ball Ball, of Montgomery, for respondents.
Brief of counsel did not reach the Reporter.
As we gather from the opinion of the Court of Appeals, the point at which the nails were placed, while a part of the Montgomery and Birmingham Highway, was undergoing construction or repair, and, at the time, had not been turned over to the proper authorities and open to the public. This being the case, the question as to whether or not the road, at this point, was a public highway was a direct issue in the case, and testimony that it was at that time assumed that it had been surrendered to the proper authorities and opened to the public and which the opinion of the Court of Appeals states had not been done. This being the case, the Court of Appeals was justified in applying the rule laid down in the case of C. of G. Ry. Co. v. Faulkner, 217 Ala. 82, 114 So. 686, and in not following the case of McCullar v. Williams, 217 Ala. 278, 116 So. 137.
Writ denied.
ANDERSON, C. J., and GARDNER, BOULDIN, and FOSTER, JJ., concur.