Bailey v. City of Mobile

• Decision Date: 03 September 1964
• Docket Number: 1 Div. 166
• Citation: 167 So.2d 294,277 Ala. 111
• Parties: Alice BAILEY v. CITY OF MOBILE.
• Court: Alabama Supreme Court

Page 294

167 So.2d 294

277 Ala. 111

Alice BAILEY v. CITY OF MOBILE.

1 Div. 166.

Supreme Court of Alabama.

Sept. 3, 1964.

Vincent F. Kilborn, Mobile, for appellant.

Wm. R. Lauten and Ralph Kennamer, Mobile, for appellee.

LAWSON, Justice.

Shortly after six o'clock on the afternoon of December 23, 1961, Mrs. Alice Bailey fell on Government Street in the City of Mobile. Among other injuries, she sustained a broken hip. Mrs. Bailey fell into the street just south of the curb on the north side of Government Street near the intersection of Government and Joachim Streets. Just prior to the fall Mrs. Bailey had been walking on the sidewalk on the east side of Joachim Street in a northerly direction and was crossing Government Street in the crosswalk area to continue her journey northward on the east side of Joachim Street.

Mrs. Bailey brought this suit in the Circuit Court of Mobile County against the City of Mobile to recover damages for the injuries she sustained as a result of the fall. In pertinent parts the single count of the complaint reads:

'* * * In the sidewalk reserved for travel by pedestrians at the northeast corner of Joachim and Government Streets, a defect or obstruction existed in the travelled portion of the way reserved for pedestrians, which defect or obstruction had been caused by the defendant, its agents, servants or employees, and which defect or obstruction was allowed to remain uncorrected after the same had been called to the attention of the governing body of the City of Mobile, or in any event, had existed and remained as a defect or obstruction for such length of time that the existence of the same was known to the officers of the City of Mobile, and, with such knowledge, they had failed and neglected to remove the same. Plaintiff avers that the defect or obstruction consisted of this: that attached to a pole embedded in the ground immediately adjacent to the sidewalk proper and protruding into the travelled portion of the way approximately 20 inches, there was affixed a large metal box used for the purposes of containing a signal system or alarm device or other instruments connected with the regulation of traffic. This box was elevated 40 inches above the ground and was an obstruction in the way. Plaintiff was unaware of the existence of this obstruction or its presence, and while walking along, collided with the same. As the direct and proximate consequence of her colliding with this box, the plaintiff was knocked down into the street; (injuries described). Plaintiff avers that the injuries sustained by her were the direct and proximate consequence of the negligence of defendant, its agents or servants in this: the defendant, its agents or servants negligently caused and created the defect or obstruction referred to or, if not caused by them, then they negligently allowed the same to remain after notice or knowledge thereof.'

After demurrer to the complaint, as amended, was overruled, the defendant interposed six pleas, the general issue and four pleas of contributory negligence and Plea 6, which alleged that the plaintiff should not recover 'for that at the time and place described in the complaint and for the acts complained of, the defendant was engaged in the performance and discharge of a governmental function of the City of Mobile.' The plaintiff's demurrer to Plea 6 was sustained. Thereafter the cause came on for trial before the court and a jury. There was a verdict for the defendant. Judgment was in accord with the verdict. Plaintiff's motion for new trial was denied and she appealed to this court.

Plea 5 reads:

'For further answer to the Complaint, the Defendant says that the Plaintiff should not have and recover of it in this cause for that at the time and place described in the Complaint she was herself guilty of negligence which proximately contributed to her said damages in that the place described in the Complaint was visible to all persons at any time of day or night and on said day and date there existed an area in the sidewalk area reserved for travel by pedestrians at the Northeast corner of Joachim and Government Streets in the cross walk area crossing Government Street along the East side of Joachim Street which was a safe way and route for the Plaintiff's use, which was also visible and easily discovered at anytime by the plaintiff or any person desiring to use the cross walk area crossing Government Street from South to North along the East side of Joachim Street, and Defendant avers that the Plaintiff, notwithstanding that this portion of the West side of the cross walk crossing Government Street from South to North along the East side of Joachim Street was plainly apparent to Plaintiff as a safe route for her use, negligently undertook to use the cross walk at the place described in the complaint, without any necessity for so doing, and as a direct and proximate consequence of her said negligence was caused to collide with a traffic box, which said negligence contributed proximately to the injuries and damages complained of.'

The plaintiff insists that the trial court erred in overruling her demurrer to Plea 5 in that it fails to aver that the plaintiff had notice of the presence of the traffic or signal box or notice of facts sufficient to put a person of ordinary care and prudence on the lookout.

The effect of our holdings in a number of cases is that a pedestrian traveling upon a public sidewalk may assume that it is in a proper condition for public travel, and is not required to be on the lookout for defects or obstructions; and in the absence of notice of the presence of a defect or obstruction, or notice of facts sufficient to put a man of ordinary care and prudence on the lookout, cannot be guilty of contributory negligence if injured by the defect or obstruction. City of Birmingham v. White, 242 Ala. 211, 214, 5 So.2d 464; Great Atlantic & Pacific Tea Co. v. Miller, 229 Ala. 313, 314, 156 So. 834; City of Decatur v. Gilliam, 222 Ala. 377, 379, 133 So. 25; Walker County v. Davis, 221 Ala. 195, 197, 128 So. 144; City of Birmingham v. Edwards, 201 Ala. 251, 255, 77 So. 841; City of Montgomery v. Ross, 195 Ala. 362, 365, 70 So. 634; Mayor and Aldermen of Birmingham v. Tayloe, 105 Ala. 170, 177, 178, 16 So. 576.

In all of the cases just cited the defect or obstruction was below the normal line of vision, uneven places in the sidewalk, a hole in a bridge or boxes on the sidewalk.

The case which more nearly resembles that presented by the pleadings here under consideration is McMurphy v. Pipkin, 260 Ala. 203, 69 So.2d 682, which is cited in brief filed on behalf of plaintiff, appellant. In that case the complaint alleged, in pertinent parts, as follows:

'* * * the plaintiff was walking in a southerly direction on the paved sidewalk of South Main Street in the City of Atmore, Escambia County, Alabama, said sidewalk being a public thoroughfare in said city; that when she reached a point on said sidewalk opposite and adjacent to 'The Sweet Shop', a restaurant operated by Will J. Sharpless, one William Stotts, an agent, servant or employee of the defendant W. J. McMurphy and who was then and there acting in the scope of his employment and in the line of his duties on behalf of McMurphy's Dairy, suddenly, negligently and with great force opened a screen door which opened outwardly from said Sweet Shop on to said sidewalk and thereby caused said screen door to strike the plaintiff with such force as to knock her off of said sidewalk and cause her to fall to the street which is at a level considerably below said sidewalk and to suffer the injuries hereinafter set out.' (260 Ala. 204, 69 So.2d 683)

The defendant interposed to that complaint the following plea:

'4X. That the Plaintiff was guilty of negligence which contributed to her injury for in this, that at the time the plaintiff approached the door to the Sweet Shop the same was open and visible for a sufficient length of time to enable her to observe said obstruction, and the plaintiff then and there was engaged in opening or closing an umbrella and walked into said door, which by the use of due care, she would have observed and could have avoided, and thus suffered the injuries complained of.' (260 Ala. 204, 69 So.2d)

Although the obstruction there involved was a door, which was in the normal line of vision of the plaintiff, we followed the holding of our cases heretofore cited and held that demurrer should have been sustaind to the plea because it did not aver that plaintiff had notice of the presence of the open door or notice of facts sufficient to put a person of ordinary care and prudence on the lookout.

Plea 5 in this case omits the same averments and, hence, the plaintiff insists that our holding in the McMurphy case, supra, requires a holding here that the trial court erred in overruling the demurrer to Plea 5.

We do not agree. We think there are material...