6 Div. 695A, City of Birmingham v. Monette, 6 Div. 695

• Decision Date: 06 March 1941
• Docket Number: 6 Div. 695,6 Div. 695A.
• Citation: 241 Ala. 109,1 So.2d 1
• Parties: City of Birmingham v. Monette et al.
• Court: Alabama Supreme Court

1 So.2d 1

241 Ala. 109

City of Birmingham v. Monette et al.

6 Div. 695, 6 Div. 695A.

Supreme Court of Alabama

March 6, 1941

Rehearing Denied April 3, 1941.

John S. Foster, of Birmingham, for appellant.

Lange Simpson, Brantley & Robinson and W.P. Rutledge, all of Birmingham, for appellees.

FOSTER, Justice.

Two actions were tried together, resulting in a judgment for plaintiffs in both. Defendant has appealed in them, and they are submitted on one record. They grow out of personal injuries sustained by Mrs. Monette, and she and her husband separately are the plaintiffs in the two actions.

The injuries occurred at the intersection of an alley with the east side of Twelfth Street, South, in Birmingham. The sidewalk sloped toward the north at a grade of about five and one-half percent as it reached the alley intersection. The intersection was about ten feet wide, paved with paving brick on edge, while the sidewalk was paved with concrete. The alley served as an entrance for ambulances to the South Highlands Hospital situated on the corner between the alley and the sidewalk in question. The paved intersection across the sidewalk had been erected by the city and in use for some twenty-five years. The constant use of it by vehicles entering caused a depression of the brick in the location where the wheels rolled over it. The edges of the brick had worn slicker than when it was first constructed. And so that about the location in the brick sidewalk in the intersection where Mrs. Monette was walking down the street, there was a decline of about fifteen percent, or three and five-eighths inches in two feet. At the edge of it on the east, the decline was greater than it was in the center.

Mrs Monette was walking down the sidewalk and reached the brick entrance, above described, about nine o'clock at night. The place was well lighted by the nearby street light. She testified that as soon as she stepped on the brick she slipped and fell, causing serious injury to her knee and other injuries and bruises: that she "had been over that place any number of times," and knew the alley was there, and she could see where she was going, and could see that the concrete pavement was ending, and that the alley was beginning, and it was obvious that there was a slight slope there, and supposed she had always known there was a slight slope there, "but didn't think about it that night. I was walking on intent on getting to my car"--that though she had seen the alley, she "had never analyzed it in (her) own mind." That she did not stumble, but slipped and went down so quickly that she didn't know what happened; that she did not slip on a foreign body of any kind, but on the pavement itself; that she was looking down at a kind of angle in front of her, and could see in front and in the direction in which she was going; her eyes were rather on the sidewalk ahead of her and not on that part where her feet touched, but proceeding along in a normal way.

The evidence of one witness was that he operated a bakery across the street from 1929 until the end of 1932; that those brick were worn slick: that in that period of time he had seen three women and one man slip and fall at this place, but apparently without injury; that he never considered it a dangerous place, and never made any complaint to the city about people falling there; that he had seen people fall at other places on the sidewalks. Other witnesses testified that they had seen some three other people fall at the same place walking down the street as Mrs. Monette was doing, and that many others were seen to slip without falling.

An assistant engineer testified that he had been familiar with this alley about eighteen years as a city employee whose duties are partly to investigate claims against the city, and that he never knew or heard of anyone falling at this place, until Mrs. Monette fell: that the brick were laid there some twenty-five or thirty years at least before by the city. The brick were paving brick which had been in common use, but not now used so much as formerly, and one of them has been certified for our inspection.

Count 1 of the complaint, on which the suit was tried, alleged that the defect consisted "of the slick kind of brick with which said public way was paved, the defective condition of said brick, the defective arrangement of said brick with reference to each other, and the slant, angle or pitch created by said defective arrangement, material and construction," and that she was caused to fall "by reason of the slick, slanting, uneven, defective and dangerous condition of the walking surface."

When tested by demurrer taking the point, we think such allegations are sufficient to charge a dangerous defect, and that the count is not subject to demurrer on account of a failure in that respect. City of Birmingham v. Wood, Ala.Sup., 197 So. 885; Mayor and Alderman of Birmingham v. Starr, 112 Ala. 98, 20 So. 424; Birmingham v. Smith, 231 Ala. 95, 163 So. 611; Birmingham v. Gordon, 167 Ala. 334, 52 So. 430.

The count was not defective in any other respect to which attention was directed by the demurrer, and as here contended.

Appellant insists that the evidence does not show such a defect as described in the complaint, or, if so, that Mrs. Monette knew of its condition and did not use due diligence to avoid it or to pass over it safely.

The duty of the city is not to make such places level nor on a uniform plane of decline, nor to use the most approved material, nor to make them free from all danger, but it is its duty to use due care to construct and maintain them in a reasonably safe condition as to such persons as may be expected to use them in the exercise of due care. So that if the percentage of decline was such that the material used was when constructed dangerously...