City of Bessemer v. Clowdus

• Decision Date: 17 June 1954
• Docket Number: 6 Div. 372
• Citation: 261 Ala. 388,74 So.2d 259
• Parties: CITY OF BESSEMER v. CLOWDUS.
• Court: Alabama Supreme Court

Page 259

74 So.2d 259

261 Ala. 388

CITY OF BESSEMER v. CLOWDUS.

6 Div. 372.

Supreme Court of Alabama.

June 17, 1954.

Rehearing Denied Aug. 30, 1954.

Long & Bains, Bessemer, for appellant.

D. G. Ewing, Birmingham and Lipscomb & Brobston, Bessemer, for appellee.

The following charge was refused to defendant:

'15. If there is a single member of this jury, who, after considering all the evidence in this case, does not believe that the plaintiff ought to recover a verdict, then you should not render a verdict against defendant.'

PER CURIAM.

This is an appeal from a judgment in favor of appellee as administratrix of the estate of H. W. Martin, deceased, against appellant for damages as the result of negligently causing decedent's death.

The negligence claimed was in allowing a defective and dangerous condition (a ditch) to remain in a public street of the city, into which plaintiff's intestate fell and caused his death. The street at that point was Fourth Avenue, extending westerly toward Tuscaloosa from Bessemer, and was one of the main arteries of travel, being federal highway No. 11. The street was eighty feet wide, the center thirty feet of which was paved, leaving twenty-four to twenty-five feet on each side unpaved. On the northern portion of the unpaved area the terrain was fairly level and graveled, and was used largely for parking. It was not set up as a sidewalk walk but was used by pedestrians. The point in question was between Twelfth and Thirteenth Streets, where the avenue crossed a creek which flowed in a natural channel. A concrete bridge over the creek formed a part of the paved roadway along the avenue. On the north side of the paved portion and about three and one-half feet from it, a concrete abutment extended parallel with the surface of the street being about one foot high, one foot thick and about sixteen feet long, and marked the location of the flow of the creek under the roadway. The bottom of the creek had a few inches of water running through jagged rock lying in its course, and was about sixteen feet below the surface of the street. The abutment had a wing extending diagonally from each end for four or five feet tapering down to the level of the surface. On each side of the channel a rock wall extended up from the bottom but did not reach the top. From Thirteenth Street toward the city, the pavement on Fourth Avenue was fifty-six feet from curb to curb, with a white way along its edge. There was a distinct narrowing of the paved roadway beyond Thirteenth Street west toward Tuscaloosa. At the Twelfth Street crossing there was a street light.

Deceased resided in Gadsden and was visiting his daughter. In years past he had made infrequent short visits to her. The daughter was the wife of Cliff Clowdus who conducted a barbecue stand just beyond Eleventh Street on Fourth Avenue, and they resided on the west side of Thirteenth Street. Deceased arrived on the afternoon of December 10, 1949, and that night ate supper at the barbecue stand, leaving it about ten o'clock to walk to his daughter's residence. The night was dark and it was raining. Early the next morning (December 11th) his dead body was found in the channel of the creek. His body was in about the center of the channel and was lying parallel with the paved roadway with his hands stretched over his head. He had one large hole on one side of his head and one small hole on the other side, both being on the frontal part of it.

There were no lights, warning signals or barricades on either side showing the location of the channel of the creek. Photographs of the location were introduced in evidence and we have them before us. They aid very materially in considering the questions involved.

The first question earnestly insisted on by appellant is that it was due the affirmative charge.

The city does not contend that the street was not under its supervision and care, extending eighty feet in width as described above. The place where the body was found was not set up by the city for special use by pedestrians. But there was nothing to indicate that pedestrians were not expected to use the area extending from the edge of the paved roadway north to the edge of the right-of-way, and it was used by many. No other provisions were made there specially for use by pedestrians. There was a space of about three and one-half feet between the abutment and road pavement available for that purpose. The roadway was heavily traveled by motor cars of various sorts. North of the area there are some small business shops and negro residences.

The first feature of the inquiry is whether there was a dangerous condition, and then whether there was negligence on the part of the city in leaving it in that condition which proximately caused decedent's death. The bridge was built in the W.P.A. days of the depression, and supplanted a wooden bridge with guard rails. If it was dangerous, was it the duty of the city to remedy it? It was unquestionably dangerous as a glance at the pictures discloses.

In respect to the duty, it is said that a city 'is not confined to keeping the mere bed of the way in proper condition, and one injured by a defect or obstruction outside the prepared part may still be entitled to recover, if the defect is so near the traveled part as to render its use unsafe'. 63 C.J.S., Municipal Corporations, § 805, p. 126, note 31; City of Birmingham v. Young, 246 Ala. 650, 22 So.2d 169; City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818. The principle has been thus analyzed in 56 A.L.R. 220:

'A number of cases lay down the rule that it is the duty of the traveler to remain within the wrought and traveled portion of the way, and that the municipality is not liable for injuries sustained by him if he departs therefrom voluntarily and without good cause. On the other hand, there is authority to the effect that, though the public authorities are not obliged to prepare the highway for travel to its full width, and though only a portion of its width has been so prepared, the public nevertheless has a right to travel over the whole width of the way as laid out, without being subjected to other or greater danger than may be presented by natural obstacles, or those occasioned by making and repairing the traveled path; and that it is not necessarily a good defense to a claim for damages if they were incurred by reason of obstruction upon the margin of the way. This line of authorities subscribes to the view that the municipality still has a right to control the whole width of the highway and is subject to a corresponding duty with respect to it, and must see that those portions outside of the traveled way are in such condition that a traveler using due care may pass without danger of accident.'

The authorities cited by appellant merely emphasize and substantiate that analysis by the annoatator. To the same effect is 25 Am.Jur. page 700, section 405.

The pictures show that the full width of the street had been improved, though no part was specially designed for a sidewalk. It presents the appearance of being the only way of travel by pedestrains along that side of the street. It would be obviously unsafe to walk along the portion paved for vehicular traffic. We have no trouble in reaching the conclusion that the locus here in question was a dangerous place to persons walking along there at night, not familiar with the condition, or forgetful of it, and it had existed long enough for the jury to find that the city had notice of it and of its danger, and that it had not been remedied through negligence of the city.

The most serious question raised and one of much difficulty is whether this decedent accidentally fell in the ditch on this occasion or whether it was the result of foul play of some sort or some physical deficiency or suicide. There were no eye witnesses to it so far as the evidence shows. The question must be solved by reaching an inference from the evidence. There was no evidence tending to show robbery, nor was there evidence of any enemy possibly seeking revenge. There was no evidence of a purpose to commit suicide or reason for doing so, or of any physical deficiency or mental aberration.

Appellant relies upon the principle stated in Southworth v. Shea, 131 Ala. 419, 30 So. 774, 775, that when 'Proof which goes no further than to show an injury could have occurred in an alleged way does not warrant the conclusion that it did so occur, where from the same proof the injury can, with equal probability, be attributed to some other cause. Such a condition is equivalent to an absence of evidence as to the true cause, and, when seen clearly to exist, imposes on the court the duty of determining, as a matter of law, against any right of recovery dependent upon the establishment of causal connection between the injury and its alleged cause'.

The other aspect of the principle is thus stated: 'As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be two or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only. On the other hand, if there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.' This statement of the principle has been quoted until it has become a classic. Southern Ry. Co. v. Dickson, 211 Ala. 481, 100 So. 665, 669; Georgia Power Co. v. Edmunds, 233 Ala. 273, 171 So. 256; Harbin v. Moore, 234 Ala. 266, 175 So. 264; Ingram v. Harris, 244 Ala. 246, 13 So.2d 48; Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505; McClinton v. McClinton, 258 Ala. 542, 63 So.2d 594.

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