56 So. 723 (Ala. 1911), City of Birmingham v. Crane

Citation56 So. 723, 175 Ala. 90
Opinion JudgeSAYRE, J.
Party NameCITY OF BIRMINGHAM v. CRANE.
AttorneyRomaine Boyd, for appellant. Frank S. White & Sons and J. S. Kennedy, for appellee.
Case DateNovember 21, 1911
CourtSupreme Court of Alabama

Page 723

56 So. 723 (Ala. 1911)

175 Ala. 90

CITY OF BIRMINGHAM

v.

CRANE.

Supreme Court of Alabama

November 21, 1911

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Hugh C. Crane, as administrator of the estate of Lloyd Kerr, deceased, against the City of Birmingham. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint is as follows: Count 1, as amended: "Plaintiff, who sues in his capacity as the administrator of Lloyd Kerr, deceased, claims of defendant mayor and aldermen of Birmingham, a municipal corporation under the laws of Alabama, the sum of $20,000 damages, in this: That on or prior to the 29th day of September, 1902, defendant had committed to its care and keeping the public streets and sidewalks of the city of Birmingham, and was in duty bound to exercise reasonable care to keep said streets and sidewalks in a reasonably safe condition for persons passing along and over same. That on, to wit, the date aforesaid, plaintiff's intestate, who was an infant under seven years of age, was on one of the public streets of said city, to wit, on Twenty-Fifth Street North, near where said street intersects with Third alley, and, while being on said street, was borne or carried by water thereon into one of the sewers of said city, and drowned. That plaintiff's said intestate's death was proximately caused by the negligence of said defendant in allowing said street to be out of repair, in this: That water was allowed to accumulate on and run over and along said street, or a part of the same, in a large quantity, viz., such quantity and with such force as to propel or convey plaintiff's said intestate along and over said street, into said sewer, causing his death by drowning, etc. And plaintiff avers that defendant had notice that said street was out of repair as above stated." Then follows an allegation of the presentation of the claim to the mayor and board of aldermen and disallowance of same. 2, As amended: Same as 1, down to and including the words "reasonably safe condition," where they first appear in said count, and adds: "That defendant, neglecting this duty in its behalf, on, to wit, the date aforesaid, negligently allowed large quantities of water to accumulate on Twenty-Fifth street, near where said street intersects with Third alley, and to flow with great force along said street, and into the mouth of one of the sewers of the said city, near the intersection of said street with said alley, and negligently permitted the mouth of said sewer into which said water flowed to be and remain open, so that a child could be carried or borne by the water on said street into said sewer. And plaintiff avers that while his intestate, a child under seven years of age, was in said water on said street on the date aforesaid, he was carried with great force by said water into the mouth of said sewer and drowned." Then follows the same averment of notice of the defect, and presentation and disallowance of claim, as in count 1. The demurrers raise the proposition that the counts did not aver sufficient knowledge of the defects on the part of the defendant, or notice to the defendant of the defects; that, if there was negligence, it was in the exercise of its governmental functions, for which the defendant was not liable; that, if there was negligence, it was in the adoption of a plan of drainage and sewerage, for which the defendant was not liable. It alleges negligence of the defendant in maintaining a street or sewer in a certain condition, but does not aver or show that said street or sewer was maintained in any other condition than that contemplated in the original plan of defendant for the improvement of said street and construction of said sewer. It shows on its face that the defendant maintained the street and sewer complained of...

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22 practice notes
  • 127 So.2d 606 (Ala. 1958), 8 Div. 917, City of Huntsville v. Miller
    • United States
    • Alabama Supreme Court of Alabama
    • October 16, 1958
    ...is complete the city is responsible for the careless and negligent manner in which it is maintained by it. [City of] Birmingham v. Crane, 175 Ala. 90, 56 So. 723; [City of] Birmingham v. Greer, 220 Ala. 678, 126 So. 859; City Council of Montgomery v. Gilmer, 33 Ala. 116, 70 Am.Dec. 562.' In......
  • 263 So.2d 682 (Ala.Civ.App. 1972), 1 Div. 55, City of Fairhope v. Raddcliffe
    • United States
    • Alabama Alabama Court of Civil Appeals
    • June 14, 1972
    ...to arise from § 234 of the Constitution of Alabama. Arndt v. Cullman, 132 Ala. 540, 31 So. 478; City of Birmingham v. Crane, Page 687 175 Ala. 90, 56 So. 723; City of Birmingham v. Greer, 220 Ala. 678, 126 So. 859; City of Huntsville v. Miller, 271 Ala. 687, 127 So.2d 606; City of Anniston ......
  • 31 So.2d 88 (Ala. 1947), 3 Div. 468, Peoples v. Seamon
    • United States
    • Alabama Supreme Court of Alabama
    • June 19, 1947
    ...R. Co. v. Herndon, 100 Ala. 451, 14 So. 287; White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A.,N.S., 568; City of Birmingham v. Crane, 175 Ala. 90, 56 So. 723; Ex parte Corder, 222 Ala. 694, 134 So. 130; Benson v. Robinson, 223 Ala. 85, 134 So. 799; McWhorter Transfer Co. v. Peek, supra, u......
  • 47 So.2d 174 (Ala. 1950), 6 Div. 889, City of Birmingham v. Bowen
    • United States
    • Alabama Supreme Court of Alabama
    • March 30, 1950
    ...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 condi......
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22 cases
  • 126 So. 859 (Ala. 1930), 6 Div. 120, City of Birmingham v. Greer
    • United States
    • Alabama Supreme Court of Alabama
    • January 16, 1930
    ...duty. Sisco v. Huntsville (Ala. Sup.) 124 So. 95; Arndt v. Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922; Birmingham v. Crane, 175 Ala. 90, 56 So. 723; Birmingham v. Kircus, 19 Ala. App. 614, 99 So. 780; Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562; Montgomery v. Stephens, 14......
  • 14 So.2d 162 (Ala.App. 1943), 3 Div. 848, Volunteer State Life Ins. Co. v. Davis
    • United States
    • Alabama Alabama Court of Appeals
    • April 20, 1943
    ...Landers, 135 Ala. 504, 33 So. 482; Staples v. Page 167. Steed, 167 Ala. 241, 52 So. 646, Ann.Cas. 1912A, 480; City of Birmingham v. Crane, 175 Ala. 90, 56 So. 723; Travis v. Louisville & N. R. Co., 183 Ala. 415, 62 So. 851; American Nat. Ins. Co. v. Rosebrough, 207 Ala. 538, 93 So. 502;......
  • 95 So. 151 (Ala. 1922), 8 Div. 347, Alabama Power Co. v. Stogner
    • United States
    • Alabama Supreme Court of Alabama
    • December 14, 1922
    ...the infant had not death resulted, and likewise it is not a bar to the action given by the statute." See City of Birmingham v. Crane, 175 Ala. 90, 98, 56 So. 723, 725. It is further announced, by way of dictum, that, in an action by a parent under the statute for the wrongful act, omis......
  • 17 So.2d 669 (Ala. 1944), 5 Div. 391, City of Clanton v. Johnson
    • United States
    • Alabama Supreme Court of Alabama
    • April 20, 1944
    ...is complete the city is responsible for the careless and negligent manner in which it is maintained by it. [City of] Birmingham v. Crane, 175 Ala. 90, 56 So. 723; [City of] Birmingham v. Greer, 220 Ala. 678, 126 So. 859; City Council of Montgomery v. Gilmer, 33 Ala. 116, 70 Am.Dec. 562. &qu......
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