City of Montgomery v. Ross
Decision Date | 20 January 1916 |
Docket Number | 203 |
Citation | 70 So. 634,195 Ala. 362 |
Parties | CITY OF MONTGOMERY v. ROSS. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.
Action by Lula M. Ross against the City of Montgomery for damages occasioned by a defective sidewalk. Judgment for plaintiff and defendant appeals. Affirmed.
Warren E. Andrews, of Montgomery, for appellant.
Hill Hill, Whiting & Stern, of Montgomery, for appellee.
Appellee sued appellant to recover damages for personal injuries alleged to have been received on account of a defect in the sidewalk at the junction of Buford street and Highland avenue, in the city of Montgomery. The defect, if any, was a sudden and abrupt change in the grade of the sidewalk of about ten inches. Appellee, while walking along the sidewalk at this point, stepped off this sudden drop, and fell receiving in consequence thereof personal injuries, for which she sues.
It is contended: First, that the city is not liable as for defects in its streets and sidewalks; second, that this sudden change of grade, or step-down, of ten inches, is not a defect in the sidewalk for which the city is liable, if liable for any defects; and, third, that plaintiff was guilty of contributory negligence, which proximately contributed to her injury, in failing to observe the step-down before stepping over it. The first of these questions is purely one of law, while the second and third are usually, under the facts shown by this record, questions of fact for the determination of the jury, and the trial court properly submitted them to the jury for their findings. The city was therefore not entitled to affirmative instructions as to either of these two questions.
The rule is now, and has been always, different in this state, touching the liability of counties and the liability of cities as for defective highways. Counties are liable as for such defects only when and to the extent that they are made so by statute; while cities or towns are liable as for such defects when not expressly made so by statute. The power and authority which the county exercises in reference to roads and bridges, in its character and nature, is governmental, rather than corporate; and upon principles of the common law a county cannot be made answerable to private individuals for injuries resulting from the failure to exercise the power in the manner most conducive to the public safety. In this respect counties are distinguished from towns, cities, and other municipal corporations charged with the duty of keeping streets and other highways in safe and suitable condition for passage. Covington Co. v. Kinney, 45 Ala. 176; Barbour Co. v. Horn, 48 Ala. 566; Id., 48 Ala. 649; Sims v. Butler Co., 49 Ala. 110; Askew v. Hale Co., 54 Ala. 639, 25 Am.Rep. 730; 2 Mayf.Dig. 921.
In the case of Town of Cullman v. McMinn, 109 Ala. 614, 19 So. 981, it is said, per Brickell, C.J.:
In Starr's Case, 112 Ala. 98, 20 So. 424, a case very similar to the one in hand, it was said:
In Starr's Case the depression was only three inches in depth, while here it is ten; but in Starr's Case the depression was not due to wear, but was structural, and so intentional, though this fact would not relieve the city of liability, provided it were actionable negligence to so construct the sidewalk. And, as before said, this question of negligence was one of fact for the jury in the case at bar. Starr's Case, 112 Ala. 98, 20 So. 424, Tayloe's Case, 105 Ala. 170, 16 So. 576, and Wright's Case, 72 Ala. 411, 47 Am.Rep. 422, are conclusive to the proposition that whether or not plaintiff was guilty of contributory negligence in stepping off the depression without observing it was a question of fact for the jury.
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