City of Birmingham v. Hornsby, 6 Div. 979.

CourtSupreme Court of Alabama
Writing for the CourtGARDNER, Chief Justice.
Citation6 So.2d 884,242 Ala. 403
PartiesCITY OF BIRMINGHAM v. HORNSBY.
Docket Number6 Div. 979.
Decision Date19 February 1942

6 So.2d 884

242 Ala. 403

CITY OF BIRMINGHAM
v.

HORNSBY.

6 Div. 979.

Supreme Court of Alabama

February 19, 1942


Rehearing Denied March 12, 1942.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

[242 Ala. 404] [6 So.2d 885] The written claim filed by plaintiff with City Clerk is in substance as follows:

"You are hereby respectfully notified that Mrs. Eunice Hornsby, while a pedestrian along the public sidewalk on the South side of First Avenue, North, between Twentieth Street and Twenty-first Street, and in front of or near the premises known as 2023 First Avenue North, in the City of Birmingham, Alabama, tripped, stumbled, slipped or otherwise was caused to fall, over or by reason of a metal lid or other device which was in said sidewalk at said time and place.

"The said Mrs. Eunice Hornsby was injured as follows:

"Said accident occurred at or about 9:00 A. M. on the 7th day of May, 1938.

"The said Mrs. Eunice Hornsby claims the sum of Ten Thousand Dollars ($10,000.00) as damages for said injuries and damages.

"The said Mrs. Eunice Hornsby resides at No. 1136 Ninth Avenue, South, in the City of Birmingham, Alabama, and she resided at said address at the time of and on the date of said accident and the receipt of said injuries and damages by her."

John S. Foster, of Birmingham, for appellant.

Taylor & Higgins and Waldrop Windham, all of Birmingham, for appellee.

GARDNER, Chief Justice.

While walking on the sidewalk along the south side of First Avenue, North, between Twentieth and Twenty-first Street and in front of the premises known as 2023 First Avenue, North, in the City of Birmingham, Alabama, plaintiff's right foot was caught on the rim of an elevator opening protruding about one-half inch above the surface of the sidewalk and as she stepped with her left foot upon the elevator lid she slipped and fell evidently with some force to the sidewalk, sustaining injuries for [242 Ala. 405] which she recovered a judgment against the city.

This elevator lid was smooth and slick as distinguished, by the proof, from other such lids in the city that are corrugated and rough. The left foot was near the center of the elevator and the door lid gave way to some extent in a slant and it could be reasonably inferred this fact accelerated the fall.

It therefore appears the jury could infer that there existed for a long number of years a combination of conditions creating a situation not reasonably safe for pedestrians and we think the case comes within the influence of City of Birmingham v. Monette, 241 Ala. 109, 1 So.2d 1, 133 A.L.R. 1020, and that under that authority the affirmative charge was properly refused. It may be added, also that under order of the court the jury, by acquiescence or agreement of the parties, viewed the scene of the accident and the following authorities are applicable upon the question of the affirmative charge. City of Roanoke v. Johnson et al., 229 Ala. 496, 158 So. 182; Warble v. Sulzberger Co. of America, 185 Ala. 603, 64 So. 361; Faught v. Leith et al., 201 Ala. 452, 78 So. 830; Folmar Mercantile Co. v. Town of Luverne, 203 Ala. 363, 83 So. 107.

The only other question relates to the sufficiency of the notice, as required by what is now § 659, Title 62, Code 1940, to the City. Our authorities are uniform to the effect that technical accuracy is not required. Substantial compliance suffices. There was no intention on the part of the law makers that such a statute should be used as a stumbling block or pit fall to prevent recovery by meritorious claimants. McKinnon v. City of Birmingham, 196 Ala. 56, 71 So....

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12 practice notes
  • City of Birmingham v. Young, 6 Div. 250.
    • United States
    • Supreme Court of Alabama
    • May 10, 1945
    ...a suit against the municipality for personal injuries or death; but technical accuracy is not required. City of Birmingham v. Hornsby, 242 Ala. 403, 6 So.2d 884; Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; City of Birmingham v. Jeff, 236 Ala. 540, 184 So. 281; Brannon v. City of......
  • Tolbert v. City of Birmingham, 6 Div. 427
    • United States
    • Supreme Court of Alabama
    • June 16, 1955
    ...and that technical accuracy is not required. Cole v. City of Birmingham, 243 Ala. 561, 563, 11 So.2d 148; City of Birmingham v. Hornsby, 242 Ala. 403, 405, 6 So.2d 884; Downs v. City of Birmingham, Page 341 240 Ala. 177, 185, 198 So. 231; City of Birmingham v. Weston, 233 Ala. 563, 565, 566......
  • Royal Ins. Co. v. Robertson, 7 Div. 674.
    • United States
    • Supreme Court of Alabama
    • March 12, 1942
    ...facie sufficient to establish the existence of a conspiracy between the defendant and such other person to commit the offense charged, and [6 So.2d 884.] such acts and declarations are in furtherance of the common design to commit the crime." In 3 Greenl. on Evidence, § 94, the rule is said......
  • Zamel v. Port of New York Authority
    • United States
    • United States State Supreme Court (New Jersey)
    • April 20, 1970
    ...doctrine of substantial compliance which is so well designed to avoid technical defeats of valid claim. Cf. City of Birmingham v. Hornsby, 242 Ala. 403, 6 So.2d 884 Our authorities are uniform to the effect that technical accuracy is not required. Substantial compliance suffices. There was ......
  • Request a trial to view additional results
12 cases
  • City of Birmingham v. Young, 6 Div. 250.
    • United States
    • Supreme Court of Alabama
    • May 10, 1945
    ...a suit against the municipality for personal injuries or death; but technical accuracy is not required. City of Birmingham v. Hornsby, 242 Ala. 403, 6 So.2d 884; Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; City of Birmingham v. Jeff, 236 Ala. 540, 184 So. 281; Brannon v. City of......
  • Tolbert v. City of Birmingham, 6 Div. 427
    • United States
    • Supreme Court of Alabama
    • June 16, 1955
    ...and that technical accuracy is not required. Cole v. City of Birmingham, 243 Ala. 561, 563, 11 So.2d 148; City of Birmingham v. Hornsby, 242 Ala. 403, 405, 6 So.2d 884; Downs v. City of Birmingham, Page 341 240 Ala. 177, 185, 198 So. 231; City of Birmingham v. Weston, 233 Ala. 563, 565, 566......
  • Royal Ins. Co. v. Robertson, 7 Div. 674.
    • United States
    • Supreme Court of Alabama
    • March 12, 1942
    ...facie sufficient to establish the existence of a conspiracy between the defendant and such other person to commit the offense charged, and [6 So.2d 884.] such acts and declarations are in furtherance of the common design to commit the crime." In 3 Greenl. on Evidence, § 94, the rule is said......
  • Zamel v. Port of New York Authority
    • United States
    • United States State Supreme Court (New Jersey)
    • April 20, 1970
    ...doctrine of substantial compliance which is so well designed to avoid technical defeats of valid claim. Cf. City of Birmingham v. Hornsby, 242 Ala. 403, 6 So.2d 884 Our authorities are uniform to the effect that technical accuracy is not required. Substantial compliance suffices. There was ......
  • Request a trial to view additional results

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