City of Birmingham v. Martin

• Decision Date: 18 January 1934
• Docket Number: 6 Div. 240.
• Parties: CITY OF BIRMINGHAM v. MARTIN.
• Court: Alabama Supreme Court

153 So. 235

228 Ala. 318

CITY OF BIRMINGHAM v. MARTIN.

6 Div. 240.

Supreme Court of Alabama

January 18, 1934

Rehearing Denied March 22, 1934.

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action for damages for personal injuries by Clara E. Martin against the City of Birmingham. From a judgment for plaintiff defendant appeals.

Affirmed.

W. J Wynn and T. A. McFarland, both of Birmingham, for appellant.

John W Altman and Fred G. Koenig, both of Birmingham, for appellee.

THOMAS Justice.

The complaint was in one count for simple negligence. Defendant's demurrers were overruled and defendant filed its plea in short by consent.

The description of the place of the accident in the sworn claim was sufficient for the purpose of information to the city of the time and place of the accident-technical accuracy was not required of such sworn statement, only that the city be reasonably and fairly informed of the facts, as to the amount of damages and the location of the place of the injury, so that the city could intelligently investigate the allowance or the rejection of that claim. And this requirement was complied with. There was no error in overruling the demurrers to the complaint. City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382; McKinnon v. City of Birmingham, 196 Ala. 56, 71 So. 463; Newman v. Mayor and Aldermen of Birmingham, 109 Ala. 630, 19 So. 902; Benton v. City of Montgomery, 200 Ala. 97, 75 So. 473; Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874; City of Bessemer v. Pope, 212 Ala. 16, 101 So. 648; Reid v. City of Mobile, 213 Ala. 321, 322, 104 So. 787.

Counsel next present for review the action of the trial court in refusing to give, at the written request of the defendant, the general affirmative charge. The rule as to such request need not be restated. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. There is evidence that the accident happened at the place indicated in the sworn claim and the complaint.

The appellant contends that it was due the general affirmative charge requested upon the further theory that plaintiff's injury follows, as a matter of law, as a direct result of the violation of a city ordinance (section 5935 (j), Birmingham Code of 1930, and Gen. Acts 1927, p. 375, § 71) forbidding the parking of a car in forbidden proximity to a fire hydrant or "within twenty-five feet from the intersection of curb lines." Courts are not supposed to be ignorant of those facts of which the general public knows, and hence know that automobilists in business and residence portions of cities pull up to points along the curb separating the vehicular driveway from the sidewalk to disembark or to discharge passengers from automobiles; and the duty rests upon such municipalities to maintain their streets, curbs, sewers, and covers thereof, in a reasonably safe condition for persons exercising ordinary care and prudence in so alighting from automobiles, and for drivers and passengers thereof so lawfully using the streets; and failing in such duty, after due notice, a municipality would be liable for such failure of duty or responsible negligence-to use due and ordinary care for the reasonable safety of persons exercising ordinary care and prudence at the time and place, for the protection of persons doing such things as ordinarily exist, or such as may be reasonably expected to occur. City of Bessemer v. Whaley, 187 Ala. 525, 528, 65 So. 542; City of Birmingham v. Maggio, 24 Ala. App. 107, 131 So. 446, 448; Dill. on Mun. Corp. §§ 1697, 1706. It is declared by our cases that liability of a municipality does not necessarily follow proof of a defect and injury resulting therefrom, but that of and for responsible negligence in suffering a defect to remain for an unreasonable time unrepaired, after it should in reason have been repaired and notice given to the municipality of such defect; but that, the basis of the action being negligence, notice to the municipality of the defect which caused the injury, or of facts tantamount to notice of such defect, "or proof of circumstances from which it appears that the defect ought to have been known and remedied," is essential to actionable liability. Town of Cullman v. McMinn, 109 Ala. 614, 615, 19 So. 981; City of Bessemer v. Whaley, supra; City Council of Montgomery v. Wright, 72 Ala. 411, 47 Am. Rep. 422; 2 Dill. Mun. Corp. (4th Ed.) § 1034.

Under the...