City of Birmingham v. Greer

• Decision Date: 16 January 1930
• Docket Number: 6 Div. 120.
• Parties: CITY OF BIRMINGHAM v. GREER.
• Court: Alabama Supreme Court

126 So. 859

220 Ala. 678

CITY OF BIRMINGHAM v. GREER.

6 Div. 120.

Supreme Court of Alabama

January 16, 1930

Rehearing Denied April 3, 1930.

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

Action for damages by Maggie L. Greer against the City of Birmingham for negligent maintenance of sanitary sewers. Judgment for plaintiff, and defendant appeals.

Affirmed.

Horace C. Wilkinson and Fitts & Fitts, all of Birmingham, for appellant.

Altman & Koenig, of Birmingham, for appellee.

FOSTER J.

This is an action against the city for negligently maintaining a part of its system of sanitary sewers as that sewage, sewage water, and foul and noxious matter was discharged in plaintiff's residence, rendering it unhealthful and undesirable and caused sickness, inconvenience and annoyance and mental pain and anguish. That this occurred on December 24, 1926, and February 18, 1929. The city is not charged with negligent or wrongful construction of the sewerage system but only its negligent or wrongful maintenance. It appears that it was a part of the system of Woodlawn which was taken into the city of Birmingham, and there was evidence that at the time alleged it was maintained by the city of Birmingham.

When a city constructs or maintains sanitary sewers, it has been held in Alabama to be responsible for the careless and negligent manner in which it discharges that duty. Sisco v. Huntsville (Ala. Sup.) 124 So. 95; Arndt v Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922; Birmingham v. Crane, 175 Ala. 90, 56 So. 723; Birmingham v. Kircus, 19 Ala. App. 614, 99 So. 780; Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562; Montgomery v. Stephens, 14 Ala. App. 274, 69 So. 970; Ginzler v. Birmingham, 6 Ala. App. 666, 60 So. 976. Some of these authorities also hold that if the city negligently provided or maintained an insufficient outlet for its sewerage system and caused water and sewage to accumulate on property resulting in damage, it is liable. Counts A and F, on which this case was tried, charge negligent and wrongful maintenance of sanitary sewers.

The city contends that it is entitled to the affirmative charge because under the act approved February 28, 1901 (Acts 1900-01, p. 1702), applying to Jefferson county, it was by section 13 required to maintain its connection with the county trunk sanitary system provided by that act, and that such county system did not have sufficient outlet, and such insufficiency was the cause of the want of proper discharge of the city's system. The theory is probably sound, if the facts were sufficient to that end.

The purpose of that act relates to sanitary sewers and not to storm sewers. This is indicated in its title and its whole spirit. The local sewers of cities and towns mentioned in section 13 evidently refer to sanitary and not storm sewers. If therefore the city in time of floods negligently turned, or allowed, its storm waters to flow into the sanitary system with notice of the insufficiency of the county sanitary sewers to care both for the sanitary sewage and the storm waters, and if by reason of so doing the damage resulted to plaintiff as alleged in the complaint, we think it would be negligent maintenance of the sanitary sewerage system as so alleged. Greiner Bldg. Corp. v. Cheektowaga (Sup.) 181 N.Y.S. 759; Sisco v. Huntsville, supra.

If the city sanitary sewers, during the management of the city and by its authority or with knowledge of the conditions, had become overloaded, and thereby rendered too small for the service required of them, and the city allowed this condition to exist or continue after notice, when with reasonable diligence it could have remedied the condition, that would be a negligent maintenance. Arndt v. Cullman, supra; Macon v. Macon Paper Co., 35 Ga.App. 120, 132 S.E. 136; 43 C.J. 1036.

Appellant invokes a principle which would relieve it from liability for errors of judgment in planning and executing a general system of drainage, including the size and levels of the drains and sewers when its officers follow the advice of skillful engineers. 43 C.J. 1125; 6 McQuillen Municipal Corporations (2d Ed.) § 2866. But while this principle seems to be well supported, there is also a well-supported limitation, to the effect that following the advice of skilled engineers in that matter is not a justification for the failure to exercise due care and not be negligent either in executing such plans or in maintaining the system after it is built. Birmingham v. Crane, 175 Ala. 90, 56 So. 723; 43 C.J. 1126; 6 McQuillen on Municipal Corporations (2d Ed.) § 6867, Exception No. 3, p. 922.

Assuming that the city undertook its maintenance, it was a duty owing by it to supply a remedy which experience may have demonstrated was needed. Birmingham v. Crane, supra; Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382; Beiker v. Cullman, 178 Ala. 662, 59 So. 625; 6 McQuillen Municipal Corporation (2d Ed.) § 2863, p. 914. "Though a city does not construct a culvert, where it uses and maintains it as a part of its sewerage system, it is bound to use reasonable care to protect the public against danger arising from its negligent maintenance." Vaccarini v. New York, 54 Misc. 600, 104 N Y. S. 928.

There were conflicting tendencies of the evidence. That for plaintiff that the sanitary system of the city was insufficient and had become inadequate in the section in which the property of appellee was situated, known to appellant, or that storm waters were negligently or wrongfully allowed in them. For the city, that the condition was due to natural causes which could not be remedied with reasonable effort and engineering skill. The issue was therefore properly left to the jury.

Appellant also claims...