Abbott v. City of Mobile

• Decision Date: 29 October 1898
• Parties: ABBOTT v. CITY OF MOBILE.
• Court: Alabama Supreme Court

24 So. 565

119 Ala. 595

ABBOTT v. CITY OF MOBILE.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action by John H. Abbott against the city of Mobile. Plaintiff's motion for a new trial, on the return of a verdict for defendant, was overruled; and, from a judgment on said verdict, plaintiff appeals. Affirmed.

This action was brought by the appellant, John H. Abbott, against the city of Mobile, to recover damages for personal injuries alleged to have been sustained by reason of the defective condition of a sidewalk in the city of Mobile. The complaint alleged that the sidewalk in question was left by said city in an "unsafe, impassable, and dangerous condition which unsafe, impassable, and dangerous condition" was well known to the defendant, and that it was by reason of this condition of the sidewalk that the plaintiff was injured. The plaintiff and his wife were the only witnesses examined for the plaintiff, and the substance of their testimony is sufficiently stated in the opinion. The defendant introduced evidence tending to show that, at the time of the accident, the sidewalk, at the place alleged in the complaint, was not in an "unsafe, impassable, and dangerous condition." The facts pertaining to the rulings of the court upon the evidence, which are reviewed on the present appeal, are sufficiently stated in the opinion. Upon the close of the testimony, the court charged the jury at great length; but it is unnecessary, under the opinion in this case, to set out this charge in detail. Among other things, the court instructed the jury as follows: "If the evidence does not satisfy your minds reasonably that the plaintiff was injured as he has set out in his complaint why, then you should find for the defendant, and the form of your verdict in that case would be, 'We, the jury, find for the defendant."' The bill of exceptions recites that, during the reading of the written charges requested by the plaintiff, a discussion arose as to one of such charges and the leading counsel for the plaintiff remarked that he would withdraw the charge, saying that he was "satisfied with the general charge of the court." The plaintiff requested the court to give to the jury the following written charges, which request was denied, and to the refusal to give each of said charges the plaintiff separately excepted: (6) "The court charges the jury that a person passing along the public street of a city is under no obligation to keep a constant lookout for defects in the street, but may walk upon the sidewalk in the manner in which persons ordinarily do and if he is injured by a defect in the streets of which he has no knowledge, and which had existed long enough for the city to have known it, without fault on his part, your verdict must be for plaintiff." (9) "The court charges the jury that, under the undisputed evidence in this case, they must find that the plaintiff was injured by reason of a defect in the sidewalk." (7) "If the jury believe all the evidence in this case, they must find a verdict for the plaintiff." (4) "The court charges the jury that, if they believe the evidence, they must find that the city was chargeable with notice of the obstructions to the sidewalk." After the jury had retired to make up their verdict, the bill of exceptions recites that "in a short while they returned to the court room, and inquired of the court, in the presence of John R. Tompkins, one of the attorneys for the plaintiff, and the attorney of the defendant, if it was necessary for them to believe all three conditions alleged in the complaint-that the sidewalk was left in an 'unsafe, impassable, and dangerous condition'-before they could find a verdict for the plaintiff, or could they do so if they believed that the evidence had shown that it was in an unsafe condition. To this inquiry the court instructed them that they must find that all the conditions alleged had been proven before they could find a verdict for the plaintiff, and plaintiff's attorney made no objection or exception to such instruction by the court. Thereupon the jury retired. The judge vacated the bench, and went into his office, in the court-house building; and afterwards, and while the judge was off the bench, in his office, the plaintiff's attorney moved the judge to be allowed to amend the complaint; and while the attorneys for plaintiff and defendant were engaged in an argument, submitting authorities pro and con, in the office of the judge, the sheriff announced to the judge that the jury were in court, ready to render a verdict; whereupon the judge and the attorneys for both parties returned into the court room, the jury having already delivered their verdict to the clerk of the court. The judge of the court then asked the jury if they had agreed upon a verdict, and they answered that they had agreed upon a verdict. The motion to amend the complaint had not been reduced to writing up to this time but thereupon it was reduced to writing;" and the court overruled the motion. To this ruling, the plaintiff duly excepted. Upon the return of the verdict for the defendant, the plaintiff moved the court to set aside such verdict, and grant him a new trial, upon the following grounds: "(1) Because the court erred in its instruction to the jury when they asked the court if it was necessary that plaintiff should have proven that the sidewalk was in an unsafe,...