City of Birmingham v. Bowen

• Decision Date: 30 March 1950
• Docket Number: 6 Div. 889
• Citation: 254 Ala. 41,47 So.2d 174
• Parties: CITY OF BIRMINGHAM v. BOWEN.
• Court: Alabama Supreme Court

Page 174

47 So.2d 174

254 Ala. 41

CITY OF BIRMINGHAM v. BOWEN.

6 Div. 889.

Supreme Court of Alabama.

March 30, 1950.

Rehearing Denied May 18, 1950.

On Motion to Modify June 22, 1950.

Wm. L. Clark, of Birmingham, for appellant.

D. G. Ewing, of Birmingham, for appellee.

'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.

The verdict was responsive to this disputed issue and was well supported by 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 there is some other testimony, I believe that has to do with the question of whether or not the lid in recent days might have been moved along that edge of the curb there; who did it, how it was done, what happened when it was done; all those things lead me to think since we are trying the question of what the condition was then; not the question of what it is now; I ruled I should not let you gentlemen inspect it. It is my decision; not the decision of either one of these gentlemen. I think I have correctly decided the question under the law and the burden rests on me; it didn't rest on these gentlemen.

'What Mr. Ewing has said, I have sustained the objection to it and I have excluded it. It is not offered in criticism of Mr. Clark or the city, it is not to be determined by the City or the plaintiff. That is not up to the city or the plaintiff, but it is up to the Court. I am the one that made the decision.

'I will overrule your motion.'

Jurors are intelligent men and it is not to be presumed that they will be influenced by every little contended misconduct which might crop into the trial of a case, and undoubtedly the prompt and preemptory redress delivered by the court eradicated whatever prejudice, if any, might have attended counsel's remarks. There was no error to reverse in refusing the motion for a mistrial.

It is also insisted that error prevailed in the action of the trial court in permitting the plaintiff to show compliance with § 503, Title 37, Code, by demanding of the mayor the name of any other person as may be liable jointly with the municipality and that the mayor had failed to furnish the name of any such person. The argument seems to be that since the City was not contending for any joint liability of some other person with the City, it was prejudicially erroneous to allow this proof. The argument is untenable. Regardless of whatever might be the defendant's contention, there could be no possible error in the plaintiff's proof of compliance with the law of the case. Moreover, the trial court carefully explained the pertinent statute to the jury and the purpose of the proffer by the plaintiff of such proof and if there had been error it was thus rendered innocuous. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.

The remaining propositions advanced for error relate to the refusal of certain special written charges requested by the defendant. Only brief treatment will be accorded them, without determining their legal correctness, since on a careful review of the record, we have concluded they were covered by the court's general oral charge, when considered with the other written charges given for the defendant.

Refused charges 5, 6, and 7 were designed to enunciate the essentiality of unanimity of conclusion by the jury, based on a reasonable satisfaction from the evidence before rendering a verdict for the plaintiff, and without which the plaintiff...