City of Bessemer v. Barnett

• Decision Date: 23 October 1924
• Docket Number: 6 Div. 193
• Citation: 212 Ala. 202,102 So. 23
• Parties: CITY OF BESSEMER v. BARNETT.
• Court: Alabama Supreme Court

102 So. 23

212 Ala. 202

CITY OF BESSEMER v. BARNETT.

6 Div. 193

Supreme Court of Alabama

October 23, 1924

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...