City of Bessemer v. Barnett, 6 Div. 193

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

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. [102 So. 24]

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...

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38 practice notes
  • Finnell v. Pitts, 8 Div. 133.
    • United States
    • Supreme Court of Alabama
    • May 1, 1930
    ...Birmingham v. Whitworth, 218 Ala. 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. 14; City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771. It was recently ......
  • Dunn v. Boise City, 4738
    • United States
    • United States State Supreme Court of Idaho
    • December 27, 1927
    ...the claim and either to adjust the 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.) The statutes are quit......
  • City of Montgomery v. Quinn, 3 Div. 416.
    • United States
    • Supreme Court of Alabama
    • October 19, 1944
    ...safe for ordinary travel is 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 plaintiff. In ......
  • City of Prattville v. Joyner
    • United States
    • Supreme Court of Alabama
    • May 12, 1995
    ...of estoppel has been applied in the past against a municipality. With respect to (1) above, the cases of City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; City of Birmingham v. Young, 246 Ala. 650, 22 So.2d 169; and City of Annist......
  • Request a trial to view additional results
38 cases
  • Finnell v. Pitts, 8 Div. 133.
    • United States
    • Supreme Court of Alabama
    • May 1, 1930
    ...Birmingham v. Whitworth, 218 Ala. 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. 14; City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771. It was recently ......
  • Dunn v. Boise City, 4738
    • United States
    • United States State Supreme Court of Idaho
    • December 27, 1927
    ...the claim and either to adjust the 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.) The statutes are quit......
  • City of Montgomery v. Quinn, 3 Div. 416.
    • United States
    • Supreme Court of Alabama
    • October 19, 1944
    ...safe for ordinary travel is 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 plaintiff. In ......
  • City of Prattville v. Joyner
    • United States
    • Supreme Court of Alabama
    • May 12, 1995
    ...of estoppel has been applied in the past against a municipality. With respect to (1) above, the cases of City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; City of Birmingham v. Young, 246 Ala. 650, 22 So.2d 169; and City of Annist......
  • Request a trial to view additional results

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