City of Bessemer v. Barnett

Citation212 Ala. 202,102 So. 23
Decision Date23 October 1924
Docket Number6 Div. 193
PartiesCITY OF BESSEMER v. BARNETT.
CourtSupreme Court of Alabama

Rehearing Denied Nov. 27, 1924

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Action for damages by Vivian Barnett, a minor, suing by her next friend, Nora Barnett, against the City of Bessemer. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

p>Page Bumgardner & Wilson, of Bessemer, for appellant.

J.A Estes, of Bessemer, for appellee.

BOULDIN J.

The action is for damages for personal injuries. The case made by the complaint is, in substance:

Plaintiff was on a sidewalk on a public street in the city of Bessemer. The municipality was using a tractor with grader attached in grading or working the street. A shelter or structure over the sidewalk was supported by upright posts near the curbstone. The street-working machinery struck and knocked down these supports, causing the overhead structure to fall upon the plaintiff, and inflict the personal injuries for which she sues.

The first count ascribes the injury to the negligence of defendant in allowing the street near the curbstone to remain, for an unreasonable time and with the knowledge of defendant's officers or agents, in a damp, marshy, and unsafe condition for the use of the street machinery, and with such knowledge, negligently causing or allowing such machinery to be used at such place, and as a proximate consequence the wheels of the machine sank into the marshy place, skidded or tilted, and struck the posts, causing the shelter to fall, etc.

The second count ascribes the injuries to the negligence of defendant's officers or agents, acting within the scope of their employment, in failing to use due care, skill, and diligence, with a knowledge of the condition of the street and sidewalk, and of the position of the plaintiff.

The evidence tended to support the several averments of the complaint. It is without dispute that the grader or dresser being used in working the street was, as the time, being operated by the street superintendent of the city of Bessemer in person.

The chief point stressed in argument is that the officers and employees of the street department, while engaged in repairing a public street are public officers or employees acting in a governmental capacity, for which act the city is not liable. Is has long been the settled law of Alabama that a municipality is under the legal duty to maintain its streets and sidewalks in a reasonably safe condition for the use of the public; and for the negligent failure so to do it is liable in tort to a person thereby injured. This has been declared a corporate, rather than a public duty, and its officers or agents to be engaged in a ministerial, rather than a governmental, function, in the performance of this service. City of Bessemer v Whaley, 187 Ala. 525, 65 So. 542; City of Birmingham v Muller, 197 Ala. 554 73 So. 30.

In City of Selma v. Perkins, 68 Ala. 148, it was said:

"If an individual suffers injury from the negligent performance of this duty, the city is answerable to him in damages. Smoot v. Mayor of Wetumpka, 24 Ala. 112; City Council of Montgomery v. Gilmer, 33 Ala. 116 70 Am.Dec. 562; Albrittin v. Huntsville, 60 Ala. 486, 31 Am.Rep. 46. If the courts of other states find it consistent with their system of jurisprudence to adopt a different view of the measure of the liability of municipal corporations, it furnishes no reason or authority for a change of the settled law of this state."

This is a continuing duty, not suspended while the street force is engaged in working the streets. The liability exists for the negligent performance as well as the nonperformance, of this duty. In the early case of Smoot v Mayor of Wetumpka, 24 Ala. 112, 121, it was said:

"We are of opinion that there is, in such cases, no solid distinction between a tortious neglect of a known, defined duty, which is of such a character as not to involve governmental powers, and the performance of such a duty in so unskillful, and negligent a manner as to cause particular or extraordinary injury to another. The consequences to the party injured are the same, whether they result from misfeasance or nonfeasance."

Nor is the case different where the superintendent of streets is personally in charge of the work or the...

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39 cases
  • Finnell v. Pitts, 8 Div. 133.
    • United States
    • Supreme Court of Alabama
    • May 1, 1930
    ......Hooper v. S. & M. R. R. Co., 69 Ala. 529; Jones v. N. O. & S. R. R. Co., 70 Ala. 232; City Council v. Townsend, 80. Ala. 489, 2 So. 155, 60 Am. Rep. 112; City Council of. Montgomery v. ...603, 119 So. 841;. Hillman v. Anniston, 214 Ala. 520, 108 So. 539, 46. A. L. R. 89; Bessemer v. Barnett, 212 Ala. 202, 102. So. 23; Williams v. City of Birmingham, 219 Ala. 19,. 121 So. ......
  • Brolin v. City of Independence
    • United States
    • Court of Appeals of Kansas
    • January 29, 1940
    ......265; Edmonston v. Kansas City, 227 Mo.App. 817, 57 S.W.2d 690;. McCarthey v. City of Washington, 124 Iowa 382, 100. N.W. 80; City of Bessemer v. Barnett, 212 Ala. 202,. 102 So. 23; Canterbury v. Boston, 141 Mass. 215, 4. N.E. 808; City of Birmingham v. Guy, 222 Ala. 373,. 132 So. 887; ......
  • Dunn v. Boise City
    • United States
    • United States State Supreme Court of Idaho
    • December 27, 1927
    ...... damages or prepare a defense. (Hinds v. Hinsdale, 80. N.H. 346, 116 A. 635; City of Bessemer v. Barnett,. 212 Ala. 202, 102 So. 23; Falldin v. City of. Seattle, 50 Wash. 561, 97 P. 658; King v. City of. Spokane, 52 Wash. 601, 100 P. 997.). ......
  • City of Montgomery v. Quinn
    • United States
    • Supreme Court of Alabama
    • October 19, 1944
    ......Carle, 191 Ala. 539,. 68 So. 22, L.R.A.1915F, 797, is among the many authorities. cited. That decision is rested upon City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542. The rule announced in. the Carle case, supra, has been followed. A later observation. of this court on the ... not controlled by the manner in which the defect arose or by. whom created, citing City of Bessemer v. Barnett, . 212 Ala. 202, 102 So. 23, where the tractor with fender. attached, working on street, struck an overhanging awning,. which fell and injured ......
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