Houston v. Town of Waverly

• Decision Date: 26 May 1932
• Docket Number: 5 Div. 99.
• Citation: 142 So. 80,225 Ala. 98
• Parties: HOUSTON v. TOWN OF WAVERLY ET AL.
• Court: Alabama Supreme Court

142 So. 80

225 Ala. 98

HOUSTON v. TOWN OF WAVERLY ET AL.

5 Div. 99.

Supreme Court of Alabama

May 26, 1932

Appeal from Circuit Court, Chambers County; W. B. Bowling, Judge.

Action for damages for personal injuries by Mrs. Era B. Houston against the Town of Waverly and the Sinclair Refining Company. From a judgment for defendants, plaintiff appeals.

Reversed and remanded.

Charge that defendant discharged its duty if it used ordinary care in filling of hole it made in sidewalk held erroneous.

The following charges were refused to plaintiff:

"2. I charge you gentlemen of the jury, that the evidence in this case fails to show that the plaintiff knew that the hole or depression was in the street or sidewalk.

"3. I charge you gentlemen of the jury, that the evidence in this case shows without dispute that the plaintiff did not know, at the time she fell that the hole or excavation or depression was in the street or sidewalk at the place where she fell.

"4. I charge you gentlemen of the jury that the evidence in this case shows without dispute that plaintiff fell on one of the streets or sidewalks of The Town of Waverly, that the cause of her fall was a hole, excavation or depression in said street or sidewalk was made or caused to exist by defendant, Sinclair Refining Company, and that the plaintiff was injured and caused to suffer as the result of said fall and that she continues to suffer in consequence of the injuries received and suffered by reason of said fall and unless you believe from the evidence that the plaintiff had knowledge of the existence of said hole, excavation or depression in said street or sidewalk before or at the time she fell she would not be guilty of negligence in walking along said street or sidewalk, and she would be entitled to recover and is entitled to a verdict at your hands."

"6. I charge you gentlemen of the jury that a plea of contributory [negligence] is no defense to an action or count for wanton or willful negligence and you will not consider such plea in connection with or in considering the count in the complaint in this case charging wanton or willful negligence."

The following charges were given at defendant's request:

"1. The jury is instructed that if they believe from the evidence that the plaintiff knew of the depression at the time of her injury and she thoughtlessly and in an absent minded way stepped into the depression, which thereby contributed proximately to her injury, then she cannot recover in this case under count 3 or count 4 of the complaint."

"3. The jury is instructed that if they shall believe from the evidence that the plaintiff knew of a defect or obstruction in the sidewalk at the place where she fell, or had notice of facts calculated to put her upon inquiry as to whether there was such defect or obstruction, and she thoughtlessly and in an absent minded way stepped into the hole or depression at that point and thereby contributed proximately to her injury, she cannot recover under count 3 or under count 4 of the complaint."

"8. The jury is instructed that if you believe from the evidence that Mrs. Houston, before the time she was injured, knew of a defect in the sidewalk at the point or place where she fell, or then had notice of facts calculated to put her on inquiry as to whether there was a defect there, but that on the evening she was injured she failed, through her own forgetfulness, to use due care to locate and avoid the defect, and that this forgetfulness on her part proximately contributed in the least degree to her injuries, she cannot recover in this action under count W [3] or under count 4 of the complaint."

"A-1 The jury is instructed that when the agent or servant of the Sinclair Refining Company removed the tank from the sidewalk it immediately became the duty of that company to restore the sidewalk to a safe condition; and if you believe from the evidence that said company, acting through its agent or servant, used ordinary care in the work of restoring it and placing the sidewalk in safe condition, by filling the hole and packing the dirt and surfacing the walk in the manner that a reasonably prudent person would have done it, then the Sinclair Refining Company performed its duty and was under no further obligation with respect to the condition of the sidewalk at that place and would not be liable for injury suffered from a defect subsequently appearing.

"A-2 If the jury believe from the evidence that when the gasoline tank was removed the hole thereby made was compactly filled and surfaced and the sidewalk at the place restored to a safe condition, all in the manner that a reasonably and ordinarily prudent person would have filled the hole and restored the sidewalk and that thereafter no agent or servant of Sinclair Refining Company interfered with the sidewalk at that point, then the plaintiff cannot recover against the Sinclair Refining Company in this case."

"A-4 If you believe from the evidence that at the time the gasoline tank was removed from the sidewalk the hole made thereby was properly and compactly filled in the manner that on ordinarily prudent person would have filled it, and that the surface of the sidewalk was then practically level, then Sinclair Refining Company was under no duty to make repairs to the sidewalk thereafter.

"A-5 If the jury believe from the evidence that the agent or servant of Sinclair Refining Company, using the care which an ordinarily prudent person would have used in like circumstances, filled the hole, made by the removal of the gasoline tank, and packed the dirt compactly as an ordinarily prudent person would have done, and left the sidewalk without any defect or depression in it, then the plaintiff cannot recover against the Sinclair Refining Company in this action.

"A-6 The jury is instructed that Sinclair Refining Company was under the duty of using ordinary care in filling the hole made by the removal of the gasoline tank; if you believe from the evidence that its agent or servant did use ordinary care in the filling of the hole then its duty was discharged and it would not be liable for defects subsequently occurring and not due to its negligence after the hole had been filled."

Jas. W. Strother, of Dadeville, and W. O. Walton, of Lafayette, for appellant.

C. S. Moon, of Lafayette, and Denson & Denson, of Opelika, for appellees.

BROWN J.

Action on the case by the appellant against appellees for personal injury alleged to have resulted in consequence of a defect in a sidewalk in the town of Waverly.

The trial court sustained the defendants' demurrers to the first and second counts of the complaint, and appellant here insists that in this ruling the court committed error.

The averments of the first count as to the location and character of the defect are "that plaintiff was walking along the sidewalk on the North side of the Town of Waverly, in the Town of Waverly, Alabama, along which the public was accustomed to pass, and while plaintiff was so walking along said public sidewalk, she stepped into a deep hole or cut in and upon said sidewalk, injuring plaintiff," etc.

The averments of the second count are: "Plaintiff was walking along the public sidewalk on the North side of the Town of Waverly, and in the Town of Waverly, in Chambers County, Alabama, along which the public was accustomed to pass, and while plaintiff was so walking along said public sidewalk, she stepped into a hole or excavation in and upon said sidewalk," etc.

The demurrer takes the point, among others, that said counts fail to allege with sufficient certainty the location of the said defect.

The rules of good pleading require that the complaint should show by distinct allegations that the defect was on a street or highway within the corporate limits, and that such street was a public way, or was treated as controlled by the municipality as a public way, at the time when and the place where the injury occurred, and should designate with reasonable certainty the place of the accident or location of the defect which caused the injury. City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382; Bryan v. Macon, 91 Ga. 530, 18 S.E. 351; City of Columbus v. Strassner, 124 Ind. 482, 25 N.E. 65; Snow v. Inhabitants of Adams, 1 Cush. (Mass.) 443; 43 C.J. 1227, § 1997, and authorities cited under note 12.

The judgment here is that the demurrer was properly sustained.

The case was tried and submitted to the jury under counts 3, 4, and 5 of the complaint as last amended, and defendants' pleas of the general issue, and contributory negligence.

Counts 3 and 4 ascribed the plaintiff's injury to the negligence of the defendants in permitting a hole or excavation in a public sidewalk made by the defendant Sinclair Refining Company in removing an underground tank to remain "open and unfilled," after the same had been called to the attention of both defendants, without warning signs or other devices to safeguard the public in the use of the sidewalk.

To these counts the defendants separately interposed pleas of contributory negligence 5, 6, and 8.

Plea 6 avers that "plaintiff knew of the alleged defect in the sidewalk and negligently failed to exercise reasonable diligence to avoid it, in this, that she failed to observe the exact location of the alleged defect-The hole-and as a proximate consequence of such failure she negligently stepped into said hole, thereby proximately contributing to the injuries complained of."

This plea was not subject to any of the objections stated in the demurrer, and the demurrer was overruled without error. City of Birmingham v. Edwards, 201 Ala. 251, 77 So 841; City of Mobile v. Ryser, 217 Ala. 92, 114 So. 903; City of Decatur v. Gilliam, 222 Ala. 377, 133 So. 25...