City of Birmingham v. Tayloe

Decision Date28 November 1894
Citation16 So. 576,105 Ala. 170
PartiesMAYOR, ETC., OF BIRMINGHAM v. TAYLOE.
CourtAlabama Supreme Court

Appeal from city court of Birmingham; Henry A. Sharpe, Judge.

Action by J. W. Tayloe against the mayor and aldermen of Birmingham. Judgment for plaintiff, and defendant appeals. Reversed.

Lane &amp White, for appellant.

Chas P. Jones and R. L. Thornton, for appellee.

COLEMAN J.

The appellee, Tayloe, sued the appellant to recover damages resulting from an obstruction placed and left on the sidewalk of Nineteenth street, near its intersection with Fourth avenue. The evidence tends to show that as plaintiff was on his way home, about dark or a little after, he collided with the handles of a large box or tool chest, projecting from the box or chest, which caused him to fall on the sidewalk, and resulted in the fracture of his arm. The defendant pleaded the general issue, and contributory negligence. The trial resulted in a verdict for the plaintiff. Various exceptions were taken to the rulings of the court upon the admission and exclusion of evidence, and to the instructions to the jury given and refused.

It was the duty of the municipal corporation of Birmingham to keep the street and sidewalks in a reasonably safe condition for travel and for use by its citizens and the public generally, and this duty extends to the entire width of the streets and sidewalks appropriated to such use and purposes. City Council v. Wright, 72 Ala. 411; Bradford v. City of Anniston, 92 Ala. 349, 8 So. 683; Mayor, etc., v. Lewis, 92 Ala. 352, 9 So. 243; Hubbard v. Concord, 35 N.H. 52. It is not denied that the box or chest with projecting handles, as described in the complaint, was upon the sidewalk, on the side next to the street; that the box was about 7 feet long, 2 1/2 feet wide, and between 2 and 3 feet in height, with handles extending out about 1 foot. Nor is it seriously controverted that plaintiff, in walking along the sidewalk, collided with the box or its handles, and fell and was injured. The evidence shows that the place where this box was left was at or near one of the most frequented and public thoroughfares and places in the city, being just diagonally across Nineteenth street and Fourth avenue from the building in which the city offices were held and kept, and where the city council and mayor and aldermen met, and in which building was the city market. There is some evidence tending to show that the box had been left there for several days, while that for the defense tended to show that it had been there only during the day at the close of which the accident happened, and was removed on the following morning. Considering the publicity of the place; the duty of patrolmen and of the street commissioner, which were proven; and the admitted length of time the box was permitted to remain at the place; its size and character,-we would declare, as matter of law, that the defendant had knowledge of the fact, or was chargeable with culpable negligence in not knowing, that the box had been placed and left for so long a time on the sidewalk. The fact that there was room between the box and the opposite limit of the sidewalk to admit of safe travel by one using the part of the sidewalk thus left open does not, per se, excuse the obstruction of another part of the sidewalk, which was equally as much used by the public for travel, and which it was entitled to use; nor is it competent to show, as a defense, that other persons traveled by the obstruction with safety. This would be a fact merely collateral to the issue. 35 N.H. 52.

As a further defense under the general issue, the defendant attempted to show that the box was put there unnecessarily and wrongfully, and without the authority of the defendant by one Connell, an independent contractor, who was engaged in repairing the sidewalks, and that putting the box on the sidewalk was "merely collateral to the work contracted to be done." In support of this proposition, we are cited to Dill. Mun. Corp. §§ 792, 793, and Wilson v. City of Wheeling, 42 Am. Rep. 780. The general principle is thus stated in these authorities, but in our opinion the rule has no application to the case at bar. If, in the performance of the work of repairs or improvement on the sidewalk, it was necessary to obstruct the sidewalk, the city was bound to protect the public and travel by suitable notice and safeguards. On the other hand, if the obstruction was unnecessary and wrongful, and "merely collateral," and the city had knowledge of the obstruction, it was equally its bounden duty to remove the obstacle, or at least to see that the public and travel were properly notified and...

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31 cases
  • Morgan Hill Paving Co. v. Fonville
    • United States
    • Supreme Court of Alabama
    • 6 Diciembre 1928
    ...... along the public highway between Birmingham, Alabama, and. Montgomery, Alabama, at a point about three miles south of. Clanton, Alabama, ...245, 102. So. 115. And it follows that the decisions cited (. Montgomery City v. Ross, 195 Ala. 362, 70 So. 634;. Lee County v. Yarbrough, 85 Ala. 590, 5 So. 341;. Brown ... Phillips, 191 Ala. 524, 67 So. 664; Mayor of. Birmingham v. Tayloe, 105 Ala. 176, 16 So. 576; City. of Montgomery v. Ferguson, 207 Ala. 433, 93 So. 4); that. ......
  • Walker County v. Davis
    • United States
    • Supreme Court of Alabama
    • 27 Marzo 1930
    ...injury. Such allegations are sufficient to present the issue of appreciation of the danger or negligence in not doing so. Mayor, etc., of Birmingham v. Tayloe, supra; Montgomery Ross, supra; Birmingham v. Starr, 112 Ala. 98, 20 So. 424; Vance v. Morgan, supra; Birmingham v. Gordon, supra; 2......
  • City of Florence v. Stack, 8 Div. 23
    • United States
    • Supreme Court of Alabama
    • 11 Julio 1963
    ...and to act on the presumption, that the way is reasonably safe for ordinary travel, whether by day or night. 13 R.C.L. 472; Birmingham v. Tayloe, 105 Ala. 170, 16 South. 576; Montgomery v. Reese, 146 Ala. 410, 40 South. 760. * * *' Vance v. Morgan, 198 Ala. 149, 73 So. 406. From Hill v. Rea......
  • McMurphy v. Pipkin
    • United States
    • Supreme Court of Alabama
    • 14 Enero 1954
    ...v. Edwards, 201 Ala. 251, 255, 77 So. 841; City of Montgomery v. Ross, 195 Ala. 362, 365, 70 So. 634; Mayor and Aldermen of Birmingham v. Tayloe, 105 Ala. 170, 177, 178, 16 So. 576. But, as stated in City of Birmingham v. Smith, 241 Ala. 32, 36, 200 So. 880, 882, 'such assumption only prote......
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