City of Birmingham v. Edwards

• Decision Date: 17 January 1918
• Docket Number: 6 Div. 680
• Citation: 201 Ala. 251,77 So. 841
• Parties: CITY OF BIRMINGHAM v. EDWARDS.
• Court: Alabama Supreme Court

77 So. 841

201 Ala. 251

CITY OF BIRMINGHAM v. EDWARDS.

6 Div. 680

Supreme Court of Alabama

January 17, 1918

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

Suit by Mrs. Fannie Edwards against the City of Birmingham and others. Judgment for unnamed defendants and for plaintiff against the City, and the City appeals. Reversed and remanded.

Suit by appellee against the city of Birmingham (appellant here) Mrs. Mary Lovett, and A.J. Cates, for the recovery of damages for injuries sustained by the plaintiff (appellee) while passing along or over the sidewalk on what is known as Tuscaloosa avenue, between College and Jefferson streets, in that part of the city of Birmingham known as West End.

It is averred in the complaint that the plaintiff tripped and fell or was caused to fall by reason and as a proximate consequence of a defect in the sidewalk at or near said point, which defect consisted in that the sidewalk was so constructed as to permit one part of the same to be about 6 inches higher than the part which immediately adjoined it thereby forming an obstruction in said sidewalk similar to a step. The accident occurred on the evening of November 12 1916, between 6 and 7 o'clock, at a time when it was "just good dark."

The defect in the paved sidewalk over which the plaintiff tripped and fell was caused by part of the sidewalk on said Tuscaloosa avenue being laid on one grade and the other part on a different grade, all of which is made to appear more clearly by the photographs which were offered in evidence and are a part of the transcript. Tuscaloosa avenue runs east and west, and is a prominent thoroughfare. The sidewalk from the point where the plaintiff was injured to the corner, 150 feet west, was laid by the town of West End, which later, in the year 1910, became a part of "Greater Birmingham." The sidewalk from the point where the plaintiff was injured to the corner, some 100 feet east, was laid by the property owners. The west 150 feet of the sidewalk was put down upon grades given by the town of West End; the east 100 feet was put down under such grades as the property owners selected; the difference in the two grades in the sidewalk making a "step-off," which was estimated by one witness to be of a depth of "three-fourths of an inch, running to as much as 2 inches," by another witness 3 1/2 inches by measurement with his hand, and by still another witness as much as 6 inches. The place where the plaintiff was injured on Tuscaloosa avenue is known as the 500 block; Jefferson street being at one end and College street at the other.

Mr. Sid Norwood, who was mayor of the old town of West End for several terms, testified that he was familiar with this block on Tuscaloosa avenue and with the sidewalk pavement thereon. He further testified that "the pavement from Jefferson street coming east on Tuscaloosa avenue on the north side of the avenue was put down a good many years ago, and the grade, location, and width established with the approval of the city of West End. After the first section of pavement had been laid, that is, the part from Jefferson street coming east, the city of West End had that part of the pavement laid extending from Quinn's Drug store (on the corner of College street and Tuscaloosa avenue) west, and meeting the other pavement." That the town of West End established the grade of this last part of the pavement, and that the same was established as it is now laid. The town of West End did not require the other pavement to be relaid, but decided to allow it to remain as it was, and did not change the grade of the remaining part of the pavement, but permitted the same to remain as first established. The town of West End was afterwards merged into, and taken in by, the present city of Birmingham.

The evidence is without dispute that the place of the conjunction of these two pavements, where this obstruction exists, is on the line between the lots of defendants Lovett and Cates, and that at the time of the purchase of their respective lots the pavement was laid, and the sidewalk existed just as it did at the time of this accident; and that no complaint was made about the grade, either by the town of West End or the city of Birmingham.

The court gave, at the request of the defendants Lovett and Cates, the affirmative charge in their behalf.

The evidence further tended to show that the nearest arc light to this defect in the sidewalk was a half block away, at the corner of Jefferson street and Tuscaloosa avenue; that the sidewalk is cement, and therefore looks lighter than the ground; that, in November, when this accident occurred, the leaves were off the trees, but there are about four shade trees between the corner where Quinn's drug store is located and the point of this defect.

Plaintiff testified that she had been down to Quinn's drug store, and on her return to her home, when she reached this obstruction in the sidewalk, she fell completely to the ground, her right knee striking against the edge of the pavement, and she thereby sustained the painful injuries complained of, and was confined to her bed for quite a while. The evidence further tends to show that she has not yet fully recovered the normal use of her limb.

The following charges were refused to the defendant:

"(3) If the jury believe from the evidence that the plaintiff before the time when she was injured knew of the 'step-off' in the sidewalk, but on the evening she was injured through her own forgetfulness failed to use due care to avoid it, and that this

forgetfulness on her part proximately contributed in the least degree to her injuries, she cannot recover," and "(5) If the plaintiff prior to the night on which she was injured knew of the condition of the sidewalk, and had before that time consciously avoided passing over it for fear of being injured, but on the night of her injuries forgot to avoid the place, and such forgetfulness contributed to her injuries, she cannot recover."

Plaintiff offered in evidence sworn statement of claim filed by her on January 24, 1917, with the clerk of the city of Birmingham; the same purporting to have been sworn to before Horace C. Wilkinson, a notary public, and had indorsed thereon the following:

"Received of Horace C. Wilkinson, attorney for Mrs. Fannie Edwards, a copy of the foregoing sworn claim, the original copy of which has been filed with me this the 24th day of January, 1917. C.B. Lloyd, Clerk of the City of Birmingham, Alabama."

The defendant objected to the introduction of said claim, and propounded questions tending to show that Wilkinson, who took the affidavit, was the attorney, and financially interested in the outcome of the case, and therefore incompetent to administer the oath; but the court sustained the objections of plaintiff to these questions. The defendant city of Birmingham again objected on the ground that the claim was not sworn to as required by law, and that the person who took the acknowledgment of the plaintiff was not competent and authorized to take her affidavit to said claim, and on the further ground that the person purported to have sworn the plaintiff to the affidavit was not authorized by law to administer the oath. The court overruled the objection, and the defendant reserved an exception.

During the main trial of the cause, no evidence was offered by the plaintiff in regard to the time when the notary public who took the affidavit was appointed, or when his term of office expired, or whether or not he had been in the discharge of the functions and duties of the office, and was a de facto officer; but, after the trial of the cause, and judgment rendered against the city, on motion for a new trial by the city, it appeared that said notary public was not duly qualified as such officer, as required by law, at the time he took the affidavit; that his term of office expired in July, 1915. The court permitted proof, over the objection by the defendant, that he had from the time of the expiration of his commission in July, 1915, continuously exercised the functions and duties of the office, was in possession of the seal of office, and had taken numerous acknowledgments to deeds, interrogatories, and other documents as a notary public, and that shortly after the expiration of his commission, he was reappointed a notary by the present Governor, but that he seems to have neglected to have filed his bond and qualified as required by the statute. It appears that he had executed a bond with proper sureties, but for some reason had overlooked filing the new bond in the probate office, but that he was acting as a notary at the time he took this affidavit, and had been continuously since the expiration of his commission in July, 1915. The motion for a new trial was overruled.

It appears from the testimony of the plaintiff that she was 55 years of age, and resided on Tuscaloosa avenue, in that part of the city of Birmingham known as West End, at the time of her accident; there being two lots intervening between her residence and the place of this defect in the sidewalk. It further appears that she had been living at this place a month before her injury; that previous to removing to the residence she now occupied, she had lived just across the street from the place of this defect, and had been living in West End for about a year before the accident; that she lived across the street for a month or two, or until about April 1st, and then moved to No. 430 Tuscaloosa avenue. She had lived at 400 Tuscaloosa avenue, at the corner of Green street and Tuscaloosa avenue, several years ago, having lived there a year. She then moved to No. 518 Tuscaloosa avenue, which is in the same block with, but a little removed from, this defect or obstruction in...