47 So.2d 174 (Ala. 1950), 6 Div. 889, City of Birmingham v. Bowen

Docket Nº:6 Div. 889.
Citation:47 So.2d 174, 254 Ala. 41
Opinion Judge:PER CURIAM.
Party Name:CITY OF BIRMINGHAM v. BOWEN.
Attorney:Wm. L. Clark, of Birmingham, for appellant., D. G. Ewing, of Birmingham, for appellee.
Case Date:March 30, 1950
Court:Supreme Court of Alabama

Page 174

47 So.2d 174 (Ala. 1950)

254 Ala. 41

CITY OF BIRMINGHAM

v.

BOWEN.

6 Div. 889.

Supreme Court of Alabama.

March 30, 1950

Page 175

Rehearing Denied May 18, 1950.

On Motion to Modify June 22, 1950.

Page 176

[254 Ala. 42] Wm. L. Clark, of Birmingham, for appellant.

[254 Ala. 43] D. G. Ewing, of Birmingham, for appellee.

[254 Ala. 42] 'The following charges were refused to defendant:

'5. The plaintiff cannot recover damages in this cause if after a fair consideration of all the evidence, any individual juror is reasonably satisfied by any material part of the evidence that plaintiff ought not to recover damages.

'6. If after a full and fair consideration of all the evidence, any individual juror is not reasonably satisfied that the plaintiff was injured by the negligence of the defendant or its servants, you should not find for the plaintiff.

'7. The Court charges the jury that unless each of the jury is reasonably satisfied from the evidence in this case that plaintiff has established in evidence all of the material averments of one count of the complaint, you cannot find for the plaintiff in this case.'

SIMPSON, Justice.

Appeal by the City of Birmingham, Alabama, from a judgment for personal injuries suffered by the plaintiff for the negligence of the City in failing to properly maintain a walkway over a water drain on 20th Street.

The governing rule is well understood. It was the duty of the City to exercise 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 either had actual knowledge of the defective condition of the walkway or that the defect had existed for such length of time as to raise a presumption of knowledge. City of Birmingham v. Martin, 228 Ala. 318, 153 So. 235; Town of Cullman v. McMinn, 109 Ala. 614, 19 So. 981.

On a careful review of the evidence, it must be affirmed that the trial court refused for the defendant the requested affirmative charge without error. Although there was no proof of actual knowledge of the defect, the facts sufficiently establish such constructive notice as made the question of liability one for the jury. The drain or sewer was along the west curb line of 20th Street and was spanned by a metal lid weighing about 300 pounds, which furnished a walkway or pass way from the curb to the street. According to some tendencies of the evidence, the base upon which this cover was supposed to rest stationary was 'sloughed off' and worn away to such an extent that there was not sufficient support to keep the lid in place, as a consequence of which when the plaintiff, in starting to cross the street, walked upon the cover, it slipped from its base, fell into the 'hole' and caused the plaintiff also to fall, from which he suffered serious and permanent injuries. From the appearance of the walkway as described by the witnesses, this was not a new defect, but was the result of years of deterioration, the walkway having been in use for approximately thirty-five years without any repairs, and although the City made periodic inspection of the surrounding conditions, the under-surface of the base of this crosswalk had never been inspected. It is fairly deducible that by a proper inspection, this dangerous condition would have been readily discernible and while there is no proof of actual notice, sufficient circumstances were proven from which it may be inferred that the defect should have been discovered. Under such circumstances, the municipal authorities were properly chargeable with constructive notice and the affirmative charge was properly refused.

[254 Ala. 44] The verdict was responsive to this disputed issue and was well supported by

Page 177

the evidence and under the usual presumptions obtaining, the refusal of the trial court denying the motion for a new trial on the weight of the evidence must also be affirmed. New York Life Ins. Co. v. Turner, 213 Ala. 286(10), 104 So. 643.

Error is claimed in the following argument to the jury by counsel for the plaintiff: 'Now, gentlemen of the jury, he said something here about no complaint--no complaint before. He says there wasn't any evidence that this thing was ever placed back on after Mose Sims [another person] fell. I take it he says Mose fell about twelve or one o'clock. Mose says he fell some time after nine o'clock and before twelve o'clock. He says that there is no evidence it was ever placed back in place. What about Mr. Bowen's testimony? Wasn't it undisputed it was there when he stepped on it. Is this jury going to assume that that thing was left open--nobody placed it back. Somebody placed it back. We don't have that evidence; the City of Birmingham might have it; I don't know. We don't.'

There was proof which raised a substantial inference that the gutter cover had been replaced after Mose fell in the same hole and counsel was within the proprieties to discuss that phase of the evidence. Considerable latitude is permitted counsel in arguing the evidence and the reasonable inferences arising, and we do not think this argument out of line.

The following argument of plaintiff's attorney to the jury was also objected to by the defendant: 'We had a picture--this picture here shows the general condition that was on--the position of it. There is no picture of the underside. I guess one could be made. He asked why didn't we take it. I will tell you why. We presumed that the jury would be allowed to go out there and look at it themselves.'

The court promptly sustained defendant's objection and excluded the argument, and in overruling the motion for a mistrial on this ground, also admonished the jury as follows:

'Gentlemen, the matter of whether or not the jury shall be allowed or permitted to visit the scene which is involved in the case, is a matter to be ruled on by the Court. Not for the parties; not by either one of these gentlemen. The Court had that question under consideration and the Court determined it. These gentlemen didn't determine it. I determined against it and I had two or three reasons for it. One of them was the condition of the weather, to be frank. But that wasn't the main reason. The main reason I determined against it was the fact that this same thing is said to have happened in the summer of 1947, which is about a year and a half ago and while there is some testimony on the subject of whether or not there has been any changes; yet...

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26 practice notes
  • 274 So.2d 291 (Ala. 1973), SC 57, Jefferson Standard Life Ins. Co. v. Pate
    • United States
    • Alabama Supreme Court of Alabama
    • 8 Marzo 1973
    ...118] not error. Rule 45, Revised Rules of Practice in the Supreme Court, Appendix to Title 7, Code of Alabama, 1940; Birmingham v. Bowen, 254 Ala. 41, 47 So.2d 174; Ferguson v. Callahan, 262 Ala. 117, 76 So.2d 856. In its oral charge the court did not state that the death certificate was pr......
  • 74 So.2d 259 (Ala. 1954), 6 Div. 372, City of Bessemer v. Clowdus
    • United States
    • Alabama Supreme Court of Alabama
    • 17 Junio 1954
    ...But under Supreme Court Rule 45, Code 1940, Tit. 7 it is now usually not reversible error to refuse it. City of Birmingham v. Bowen, 254 Ala. 41, 47 So.2d 174. Assignment of error No. 4 relates to the refusal of charge 18. The substance of this charge is included in charges 5, 14, 20 and 22......
  • 79 So.2d 20 (Ala. 1955), 6 Div. 828, Hunt v. Ward
    • United States
    • Alabama Supreme Court of Alabama
    • 24 Marzo 1955
    ...to a verdict. We have a line of cases holding that such a charge should be given. They are reviewed in City of Birmingham v. Bowen, 254 Ala. 41, 47 So.2d 174, where it was held that its substance was included in the oral charge and given written charges. Such is the status of this record as......
  • 80 So.2d 288 (Ala. 1955), 6 Div. 768, Louisville & N.R. Co. v. Tucker
    • United States
    • Alabama Supreme Court of Alabama
    • 10 Marzo 1955
    ...reversible error. Considerable latitude is permitted counsel in arguing inferences from the evidence. City of Birmingham v. Bowen, 254 Ala. 41, 47 So.2d 174. Furthermore the right of counsel to pursue his own line of argument within legitimate bounds is a constitutional right and as much di......
  • Free signup to view additional results
25 cases
  • 274 So.2d 291 (Ala. 1973), SC 57, Jefferson Standard Life Ins. Co. v. Pate
    • United States
    • Alabama Supreme Court of Alabama
    • 8 Marzo 1973
    ...118] not error. Rule 45, Revised Rules of Practice in the Supreme Court, Appendix to Title 7, Code of Alabama, 1940; Birmingham v. Bowen, 254 Ala. 41, 47 So.2d 174; Ferguson v. Callahan, 262 Ala. 117, 76 So.2d 856. In its oral charge the court did not state that the death certificate was pr......
  • 74 So.2d 259 (Ala. 1954), 6 Div. 372, City of Bessemer v. Clowdus
    • United States
    • Alabama Supreme Court of Alabama
    • 17 Junio 1954
    ...But under Supreme Court Rule 45, Code 1940, Tit. 7 it is now usually not reversible error to refuse it. City of Birmingham v. Bowen, 254 Ala. 41, 47 So.2d 174. Assignment of error No. 4 relates to the refusal of charge 18. The substance of this charge is included in charges 5, 14, 20 and 22......
  • 79 So.2d 20 (Ala. 1955), 6 Div. 828, Hunt v. Ward
    • United States
    • Alabama Supreme Court of Alabama
    • 24 Marzo 1955
    ...to a verdict. We have a line of cases holding that such a charge should be given. They are reviewed in City of Birmingham v. Bowen, 254 Ala. 41, 47 So.2d 174, where it was held that its substance was included in the oral charge and given written charges. Such is the status of this record as......
  • 80 So.2d 288 (Ala. 1955), 6 Div. 768, Louisville & N.R. Co. v. Tucker
    • United States
    • Alabama Supreme Court of Alabama
    • 10 Marzo 1955
    ...reversible error. Considerable latitude is permitted counsel in arguing inferences from the evidence. City of Birmingham v. Bowen, 254 Ala. 41, 47 So.2d 174. Furthermore the right of counsel to pursue his own line of argument within legitimate bounds is a constitutional right and as much di......
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