167 So. 276 (Ala. 1936), 6 Div. 793, City of Tuscaloosa v. Fair

CourtSupreme Court of Alabama
Writing for the CourtFOSTER, Justice. FOSTER, Justice.
JudgeANDERSON, C.J., and GARDNER and BOULDIN, JJ., concur. ANDERSON, C.J., and GARDNER and BOULDIN, JJ., concur.
Citation232 Ala. 129,167 So. 276
PartiesCITY OF TUSCALOOSA et al. v. FAIR.
Docket Number6 Div. 793
Date13 February 1936

Page 276

167 So. 276 (Ala. 1936)

232 Ala. 129

CITY OF TUSCALOOSA et al.

v.

FAIR.

6 Div. 793

Supreme Court of Alabama

February 13, 1936

Rehearing Denied April 9, 1936

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.

Action for damages for personal injury by Mrs. Crin Fair against the City of Tuscaloosa, the Alabama Power Company, and others. From a judgment for plaintiff, the named defendants appeal.

Reversed and remanded.

Page 277

S.H. Sprott and Reuben H. Wright, both of Tuscaloosa, for appellant City of Tuscaloosa.

Harwood & McQueen, of Tuscaloosa, and Martin, Turner & McWhorter and Walter Bouldin, all of Birmingham, for appellant Alabama Power Co.

Beddow, Ray & Jones, of Birmingham, and Foster, Rice & Foster, J.G. Madison and Hyman Rosenfeld, all of Tuscaloosa, for appellee.

FOSTER, Justice.

Appellee sued to recover damages for personal injuries caused by stepping in a hole in August, 1932. The hole was 18 or 20 inches deep and about 16 inches in diameter, as some of the evidence tended to show. It was near the intersection of Greensboro avenue, extending north and south, and Seventeenth street, extending east and west, in the city of Tuscaloosa.

The complaint, the claim for damages filed with the city, and much of the evidence and some of the briefs refer to the latter street as Eighteenth, and some of the evidence and briefs, and all of the maps, refer to it as Seventeenth street. But they refer to the same location, since it appears that extending west of Greensboro avenue it is called Eighteenth, and

Page 278

east it is called Seventeenth, and no point is made in respect to such a situation.

Along the east side of Greensboro avenue there is a paved sidewalk of customary size. Between the west line of that walk and the paved portion for vehicular travel there is space of 31 feet and 3 inches, called a parkway or grass plot, not unusual in such a situation. There is no sidewalk, paved or otherwise, marked along the south side of Seventeenth street, approaching the intersection. But at the intersection on the southeast corner the entire space west of the paved sidewalk on Greensboro avenue, extending north to Seventeenth street and west to the paved driveway, was a space without mark for sidewalk or any sort of designation for foot travel. But the space usually so traveled was near where the hole was situated in which plaintiff stepped. The hole was about halfway between the curb on the west and sidewalk on the east.

The injury occurred in August, and the tendency of the evidence was that the city had kept the parkway in order by having its servants mow the grass periodically, both before and after the accident.

Another person had stepped in the hole about two weeks before that, but that circumstance does not appear to have been reported to the city. Otherwise there is no evidence that any one had seen it before plaintiff was injured.

After plaintiff was injured, the hole was dug out by the city, and there was found the butt of two chestnut stumps of a sort used for wire lines; one in bad state of decay, immediately under the sink, and one not so badly decayed about 6 inches to one side, over which there was no sink. There is evidence that at about that location there had been a post to which was attached a guy wire of the Alabama Power Company, extending to its wire line post at the curb; and that it had made a change there about 15 months before the injury to plaintiff, whereby the guy wire was removed and the post no longer appeared. Those posts were also in the course of an old wire line long before removed. It does not appear just what was done about either stub at the time defendant moved the guy wire, nor how the place was left or appeared, or how the work was done at that time, except as may be inferred from the fact of the hole 15 months afterward and its appearance at that time. There is no evidence that it was seen in the meantime.

The witness Spiller testified: "It was an old hole with grass growing around it. It wasn't a fresh hole. It had the appearance of being an old hole that had been there for sometime." And again: "It occurs to me that the hole or piece of post that was left in the ground had sunk down from the top of the ground. It seems as if it had recently rotted off and sunk down. Grass and weeds growed up around the hole. The street gang cut them all down. They had street gangs out working there before and after that time. I don't recall them being there before that summer. I presume the city had a street overseer at that time. *** There was nothing to keep anybody from seeing that hole if they looked for it in the day time. *** The city cut the weeds and grass there before the accident and afterwards periodically. They had a regular mowing machine, and mowed the grass and weeds on that parkway."

Again, by the same witness, on page 91: "Right where the hole was, was not level before that, it was sunk, gave down like a pan shape. The ground was flat there, there would be a sink like a pan shape, just a sink in this part of the ground for ten inches around. *** I didn't notice any hole there the day before. It wasn't level right where the hole was, it was sunk, gave down like a pan shape. *** Both the hole and the ground it had grass and trash that had accumulated. There was litter there just like a hole would be littered on top where you would not pay any attention to, nobody in the world would notice it, you could pass it half a dozen times a day and not notice there being a hole, looked like it piled in. *** There was trash and pieces of timber and trash like chips and things like that, down inside was crusted ground where it had given away. There wasn't any fresh dirt in it. *** There was a kind of crust there." He never saw the hole before, though he often passed that way.

The suit is against the city of Tuscaloosa, Alabama Power Company, Western Union Telegraph Company, Postal Telegraph Company, Southern Bell Telephone & Telegraph Company, and American Telephone & Telegraph Company. The court gave the affirmative charge for all the defendants, except the city and Alabama

Page 279

Power Company. Judgment was rendered on verdict against both of them, and they each separately appeal and separately assign errors.

The cause of action against the city was in not removing a dangerous condition, and that against the power company was in creating that condition. They could both be sued and the causes of action united under sections 2029, 2030, Code.

It is the duty of the city to use reasonable care that no such danger shall remain in a public street where people have the right to travel, although it was caused by another. If it was not caused by another, the city is liable without the necessity of making another a party. If it was caused by another, the city has the right to have the liability of that other tested, and, if found liable also, such liability takes priority over that of the city. City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A.1915F, 797.

But the liability of each is dependent upon different duties enjoined by law. The negligence of a city which does not cause the danger is in the failure to remedy the defect "after the same had been called to the attention of the city council, or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect." Section 2029, Code; City of Birmingham v. Carle, supra; City of Decatur v. Gilliam, 222 Ala. 377, 133 So. 25.

The Assignments 12, 13, 14, 15, 16, 22, 23, 24, 26, 27, 28, 29, 30, 31, and 35, by the City. Some of those assignments point out the fact that the trial court approved a contention that this duty of the city extended to a grass plot or parkway such as here described, and that persons have a right to walk across it (12, 13, 14, 15, and 16). This is correct, as held in the Carle Case, supra. And in other assignments the court refused to hold that no one has the right to travel on or over such space when there is a paved walkway adequate for such use, and that, if he is injured by reason of a defect when he does so, the city is not liable, even though he uses due care, and the city has not done so.

But such is not the rule approved in Alabama and in many other states, City of Birmingham v. Carle, supra; Butler v. McMinnville, 126 Or. 56, 268 P. 760, 59 A.L.R. 381, note, page 387, made more emphatic when, as here, there is no designated walkway for making the crossing, 44 Corpus Juris, 1027.

When one walks on or across such a parkway, he must use reasonable care to detect and avoid defects. Carle Case, supra; 44 Corpus Juris, 1066. When walking along or across a designated and marked sidewalk, one need not use such reasonable care. City of Decatur v. Gilliam, supra. He has the right to assume that there is no defect. But not so on a parkway. The city may prohibit walking on such space designated and marked, and, when so, it is said not to be liable for injuries caused by a defect. 13 R.C.L. p. 260, § 214. But, when there is no such prohibition, there is a diversity of opinion elsewhere as to whether there is a duty by the city to remedy defects as respects the right of one walking on such space in the exercise of due care. Norfolk v. Travis, 149 Va. 523, 140 S.E. 641, 56 A.L.R. 214, note, page 220; 13 R.C.L. 381, 466; 29 Corpus Juris, 683. But this court has adopted the rule of due care by the city under such circumstances, as we have shown.

The trial judge clearly and correctly charged the jury in respect to the duty of the city and of the plaintiff as she was crossing this parkway.

In that respect there was no error prejudicial to the city.

Assignments 18, 19, 20, 35, and 36 by the City. The city is here taking the position that it was due the affirmative charge, or, in the alternative, a new trial for lack of evidence sufficient to show notice of the...

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  • 51 Cal.2d 127, 19977, City & County of S. F. v. Ho Sing
    • United States
    • California United States State Supreme Court (California)
    • October 24, 1958
    ...S.Ct. 564, 568, 40 L.Ed. 712]; Salt Lake City v. Schubach, 108 Utah 266 [157-158, 160 A.L.R. 809, 821-822]; City of Tuscaloosa v. Fair, 232 Ala. 129 [167 So. 276, 279.]; Gulf, Mobile & Ohio R. Co. v. Arthur Dixon Transfer Co., 343 Ill.App. 148 [98 N.E.2d 783, 785]; 19 McQuillin, Municip......
  • 41 Cal.2d 419, 18772, Peters v. City & County of San Francisco
    • United States
    • California United States State Supreme Court (California)
    • August 21, 1953
    ...that of the city is to use due care to discover and remove defective conditions. (See City of Tuscaloosa v. Fair, 232 Page 429 Ala. 129 [167 So. 276, 279, 281.].) Thus, the liability of each type of defendant is based upon his individual wrongful act or omission, and it is possible to have ......
  • 101 So.2d 265 (Ala. 1958), 3 Div. 696, Louisville & N.R. Co. v. Johns
    • United States
    • Supreme Court of Alabama
    • March 6, 1958
    ...may have done a vicious and intentional act, and the other was not a party to it, though legally responsible. City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276. In any event the claim against them each separately is on a different theory of liability and is not joint, though they are jo......
  • 514 So.2d 1249 (Ala. 1986), 84-1222, Black Belt Wood Co., Inc. v. Sessions
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    ...of tort feasors. City of Birmingham v. Hawkins, 196 Ala. 127, 72 So. 25; Layman v. Hendrix, 1 Ala. 212; City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276; 64 C.J. p. 1084; Bull v. Albright, 254 Ala. 29, 47 So.2d 266." (Emphasis 257 Ala. at 124, 57 So.2d at 615. We recognize that in......
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60 cases
  • 101 So.2d 265 (Ala. 1958), 3 Div. 696, Louisville & N.R. Co. v. Johns
    • United States
    • Alabama Supreme Court of Alabama
    • March 6, 1958
    ...may have done a vicious and intentional act, and the other was not a party to it, though legally responsible. City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276. In any event the claim against them each separately is on a different theory of liability and is not joint, though they are jo......
  • 190 So.2d 674 (Ala. 1966), 6 Div. 275, Alabama Power Co. v. King
    • United States
    • Alabama Supreme Court of Alabama
    • June 2, 1966
    ...defendants. In such case the power exists, in the ends of justice, to reverse the judgment in its entirety. City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276; Luquire Ins. Co. v. Parker, 241 Ala. 621, 4 So.2d 259; Zemczonek v. McElroy, 264 Ala. 258, 86 So.2d 824. Being clear to the conc......
  • 51 Cal.2d 127, 19977, City & County of S. F. v. Ho Sing
    • United States
    • California United States State Supreme Court (California)
    • October 24, 1958
    ...S.Ct. 564, 568, 40 L.Ed. 712]; Salt Lake City v. Schubach, 108 Utah 266 [157-158, 160 A.L.R. 809, 821-822]; City of Tuscaloosa v. Fair, 232 Ala. 129 [167 So. 276, 279.]; Gulf, Mobile & Ohio R. Co. v. Arthur Dixon Transfer Co., 343 Ill.App. 148 [98 N.E.2d 783, 785]; 19 McQuillin, Municip......
  • 105 So.2d 121 (Ala. 1958), 6 Div. 209, Jacks v. City of Birmingham
    • United States
    • Alabama Supreme Court of Alabama
    • June 5, 1958
    ...is in accord with the principle stated and it was not reversible error to give it. Anything to the contrary in City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276, is disapproved. Charge 24 given at the request of the defendant may be subject to the criticism that it concludes that on the......
  • Request a trial to view additional results

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