City of Birmingham v. Hornsby

• Decision Date: 19 February 1942
• Docket Number: 6 Div. 979.
• Citation: 6 So.2d 884,242 Ala. 403
• Parties: CITY OF BIRMINGHAM v. HORNSBY.
• Court: Alabama Supreme Court

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.

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 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. 463.

The notice in this case gives all information necessary for an intelligent investigation of the place and nature of the accident, the damages claimed, the residence of the claimant and indeed the proof discloses that the assistant city engineer did in fact make such intelligent investigation and was a helpful witness for the city. The notice contained in substance all the matters of information required by the statute and was sufficient. Defendant's argument to the contrary would require a very minute detail and technical accuracy not contemplated by the statute.

We have considered the two points pressed in argument and find them without merit. Further elaboration is unnecessary. There was no error to reverse. Let the judgment stand affirmed.

Affirmed.

THOMAS, BROWN, and FOSTER, JJ., concur.

On Rehearing.

GARDNER Chief Justice.

There were only two questions presented on this appeal. The record was given careful study and pertinent authorities in briefs of respective counsel examined and considered. In writing the opinion we endeavored to be brief. We thought then, and still think, this was a commendable effort. But counsel for the city are much impressed their insistence upon the point as to the insufficiency of the notice filed "has not received the consideration from the Supreme Court to which an appellant is entitled", and that our brief summary in regard to this question is unsustained by the record "because every consideration mentioned is contrary to the facts in the case".

A brief response is in order. The argument presents nothing new. Counsel cites City of Birmingham...