108 So. 382 (Ala. 1926), 6 Div. 627, City of Birmingham v. Mauzey

Docket Nº6 Div. 627
Citation108 So. 382, 214 Ala. 476
Opinion JudgeSAYRE, J.
Party NameCITY OF BIRMINGHAM v. MAUZEY.
AttorneyW.J. Wynn and W.K. Terry, both of Birmingham, for appellant. Stokely, Scrivner, Dominick & Smith and D.G. Ewing, all of Birmingham, for appellee.
Judge PanelANDERSON, C.J., and GARDNER and MILLER, JJ., concur.
Case DateApril 22, 1926
CourtSupreme Court of Alabama

Page 382

108 So. 382 (Ala. 1926)

214 Ala. 476

CITY OF BIRMINGHAM

v.

MAUZEY.

6 Div. 627

Supreme Court of Alabama

April 22, 1926

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by Gertrude Mauzey against the City of Birmingham. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Code 1923, § 7326. Affirmed.

Page 383

W.J. Wynn and W.K. Terry, both of Birmingham, for appellant.

Stokely, Scrivner, Dominick & Smith and D.G. Ewing, all of Birmingham, for appellee.

SAYRE, J.

The statement of the case contains count 1 of the complaint. With minor variations counts 2 and 3 alleged plaintiff's (appellee's) cause of action substantially as in count 1. Defendant complains that the declaration did not adequately inform it as to the location of the drainage sewer opening into which she fell. We think that reference to the complaint will refute this ground of demurrer. Nor was the complaint demurrable on other grounds. Defendant insists that it would impose upon it a duty not exacted by law, because it avers that "said drainage sewer was without bars, grating, or cover, or others means of preventing pedestrians from falling into said opening," whereas the law requires only that such openings shall be so maintained as not to endanger pedestrians unnecessarily; but the demurrer overlooks the conclusion drawn by the pleader from the facts alleged, viz.: "That thereby said street or highway was not in a reasonably safe condition for travelers"--a conclusion the pleader might reasonably draw and the jury might approve. The demurrer was properly overruled.

The action of the court in sustaining demurrers to special pleas 5 to 9, both inclusive, was free from error. These pleas were defective on various grounds: Plea 5 would attribute negligence to plaintiff in moving without the projected lines of the sidewalk, but alleges no ordinance forbidding plaintiff to walk where she did. Plea 6 was a mere conclusion of the pleader; it alleged no facts showing that plaintiff was guilty of negligence

Page 384

on her part. Plea 7 sets up the ordinance requiring pedestrians, when crossing streets, to keep within the projected lines of the sidewalk, but fails to allege that plaintiff's violation thereof contributed proximately to her injury. Plea 8 is in the same plight as plea 5, and plea 9 was a shorthand...

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23 practice notes
  • 47 So.2d 174 (Ala. 1950), 6 Div. 889, City of Birmingham v. Bowen
    • United States
    • Alabama Supreme Court of Alabama
    • March 30, 1950
    ...reasonable care in maintaining said sewer so that the public might use the walkway in safety. City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382(10); City of Birmingham v. Crane, 175 Ala. 90, 56 So. 723. In such an action, the burden is on the plaintiff to establish that the City eithe......
  • 126 So. 859 (Ala. 1930), 6 Div. 120, City of Birmingham v. Greer
    • United States
    • Alabama Supreme Court of Alabama
    • January 16, 1930
    ...it to supply a remedy which experience may have demonstrated was needed. Birmingham v. Crane, supra; Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382; Beiker v. Cullman, 178 Ala. 662, 59 So. 625; 6 McQuillen Municipal Corporation (2d Ed.) § 2863, p. 914. "Though Page 861 a city does not......
  • 105 So.2d 121 (Ala. 1958), 6 Div. 209, Jacks v. City of Birmingham
    • United States
    • Alabama Supreme Court of Alabama
    • June 5, 1958
    ...in a bad state of preservation. City of Birmingham v. Smith, 241 Ala. 32, 200 So. 880; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382. As we have heretofore stated, the duty on the part of the city was to exercise reasonable care to keep its streets and sidewalks in safe condition ......
  • 159 So. 818 (Ala. 1935), 6 Div. 554, City of Birmingham v. Cox
    • United States
    • Alabama Supreme Court of Alabama
    • February 28, 1935
    ...196 Ala. 56, 71 So. 463; Benton v. City of Montgomery et al., 200 Ala. 97, 100, 75 So. 473; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382. The same is true of the time or place of the injury as claimed. There was error in refusing defendant's charge which we denominate A. Under th......
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23 cases
  • 47 So.2d 174 (Ala. 1950), 6 Div. 889, City of Birmingham v. Bowen
    • United States
    • Alabama Supreme Court of Alabama
    • March 30, 1950
    ...reasonable care in maintaining said sewer so that the public might use the walkway in safety. City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382(10); City of Birmingham v. Crane, 175 Ala. 90, 56 So. 723. In such an action, the burden is on the plaintiff to establish that the City eithe......
  • 126 So. 859 (Ala. 1930), 6 Div. 120, City of Birmingham v. Greer
    • United States
    • Alabama Supreme Court of Alabama
    • January 16, 1930
    ...it to supply a remedy which experience may have demonstrated was needed. Birmingham v. Crane, supra; Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382; Beiker v. Cullman, 178 Ala. 662, 59 So. 625; 6 McQuillen Municipal Corporation (2d Ed.) § 2863, p. 914. "Though Page 861 a city does not......
  • 105 So.2d 121 (Ala. 1958), 6 Div. 209, Jacks v. City of Birmingham
    • United States
    • Alabama Supreme Court of Alabama
    • June 5, 1958
    ...in a bad state of preservation. City of Birmingham v. Smith, 241 Ala. 32, 200 So. 880; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382. As we have heretofore stated, the duty on the part of the city was to exercise reasonable care to keep its streets and sidewalks in safe condition ......
  • 159 So. 818 (Ala. 1935), 6 Div. 554, City of Birmingham v. Cox
    • United States
    • Alabama Supreme Court of Alabama
    • February 28, 1935
    ...196 Ala. 56, 71 So. 463; Benton v. City of Montgomery et al., 200 Ala. 97, 100, 75 So. 473; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382. The same is true of the time or place of the injury as claimed. There was error in refusing defendant's charge which we denominate A. Under th......
  • Request a trial to view additional results