City of Birmingham v. Young

• Decision Date: 10 May 1945
• Docket Number: 6 Div. 250.
• Parties: CITY OF BIRMINGHAM v. YOUNG.
• Court: Alabama Supreme Court

22 So.2d 169

246 Ala. 650

CITY OF BIRMINGHAM v. YOUNG.

6 Div. 250.

Supreme Court of Alabama

May 10, 1945

Geo P. Bondurant, of Birmingham, for appellant.

Chas. W. Greer and Frank Bainbridge, both of Birmingham, for appellee.

The complaint as amended is as follows:

'Count 1. Plaintiff claims of the defendant, a municipal corporation, the sum of twenty-five thousand ($25,000.00) Dollars damages, for that on to-wit, the 19th day of March 1943, the plaintiff while riding in an automobile over and along a public highway in said city, to-wit, over and along the intersection of Division Avenue and 65th Street, was injured as follows: Said automobile ran or fell into an open ditch which was then and there in said intersection, which said ditch was to-wit 3 feet deep and 2 1/2 feet wide and which said ditch was without guards or lights or other warning signals of the presence of said ditch, and as a proximate consequence thereof the defendant's knee cap was broken and fractured, her hands, neck, arms, breasts back, body, limbs, pelvis and abdominal cavities, and her spine were contused and permanently injured; her nervous system was permanently impaired; she was caused to suffer great physical pain and anguish and was permanently crippled. Plaintiff avers that all of her said injuries were proximately caused by the negligence of the defendant in negligently permitting said open ditch to be and remain in said highway. Plaintiff avers that on the 20th day of April, 1943 she served the notice hereto attached and marked 'Exhibit A' and made a part thereof upon the City Commissioners of the City of Birmingham, by leaving the same with Mrs. Eunice Hughes, City Clerk and Clerk for said Commissioners.'

The notice exhibited with the complaint is as follows:

'Birmingham, Alabama

'April 19, 1943.

'To the Honorable the Commissioners of the City of Birmingham.

'Gentlemen:

'You are hereby respectfully notified that the undersigned, while riding in an automobile over and along a public street in the City of Birmingham, Alabama, to-wit, over and along Division Avenue, and over and along a point on said avenue, to-wit, where said avenue intersects 65th Street and just east of that point on said intersection which is traversed by the railroad tracks of the L & N Rail Road Company, was injured by said automobile running or falling into an open ditch which was then and there in said intersection, which said ditch was, to-wit, 3 feet deep and 2 1/2 feet wide and which said ditch was without guards or lights or other warning signals of the presence of said ditch in said intersection. The undersigned's knee cap was broken and fractured, her hands, neck, breasts, arms, back, body, limbs, pelvic and abdominal cavities,

and her spine were contused and permaently injured; her general nervous system was permanently impaired; she was caused to suffer great physical and mental pain and anguish and was permanently crippled. The accident occurred on March 19th, 1943 at about 10:30 P. M. and the undersigned claims twenty-five thousand ($25,000.00) Dollars as damages for her said injuries. The undersigned lives at 2231 15th Ave., South, Birmingham, Alabama, and lived at said address at the time she received her injuries.'

The verdict of the jury was in the sum of $1,800.

The following charge was refused to defendant: '42. The Court charges you, Gentlemen of the Jury, there is no absolute duty upon a municipality to provide guard rails or barriers at or near an open ditch, sewer or drain unless the place is dangerous and along side the street which without such protection will render the highway unsafe for travelers in the usual modes.'

LIVINGSTON Justice.

Appeal by the city of Birmingham, Alabama, a municipal corporation, from a judgment in favor of Mrs. M. J. Young for personal injuries received when an automobile in which she was riding ran or fell into an open ditch in the intersection of Division Avenue and 65th Street in said municipality.

Amended count 1, on which the cause was tried, alleged that plaintiff was injured while riding in an automobile over and along a public highway in said city, to-wit, over and along the intersection of Division Avenue and 65th Street. This was the use for which streets are made, and discloses a duty on the part of the city to maintain same in a reasonably safe condition for the use of those riding in automobiles.

The count then charges that said automobile ran or fell into an open ditch which was then and there in said intersection, which said ditch was to-wit three feet deep and two and one-half feet wide, and which said ditch was without guards or lights or other warning signals of the presence of said ditch, and as a proximate consequence thereof she was injured, etc.; and avers that all of her said injuries were proximately caused by the negligence of the defendant in negligently permitting said open ditch to be and remain in said highway.

While the count does not expressly allege a 'defect' or 'dangerous condition,' the facts alleged reasonably import the same thing. A ditch in a public street, such as an automobile may and does run or fall into and cause the severe injuries alleged, and left without guards or warning signals is, prima facie, a dangerous defect. And a count which alleges facts from which negligence may be reasonably inferred, followed by averments of negligence whereby the plaintiff assumes the burden to prove negligence in the particular case, is sufficient. City of Birmingham v. Smith, 231 Ala. 95, 163 So. 611, and cases cited.

And a general averment that 'all of her said injuries were proximately caused by the negligence of defendant in negligently permitting said open ditch to be and remain in said highway,' is a sufficient averment that such condition was known, or, in the exercise of reasonable care, would have been known to the city authorities. City of Birmingham v. Smith, supra; Lord v. City of Mobile, 113 Ala. 360, 21 So. 366; City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48; City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; City of Albany v. Black, 216 Ala. 4, 112 So. 433.

It is alleged in count 1 as amended that, before the commencement of the suit and in compliance with section 504, Title 37, Code of 1940, plaintiff gave notice to the city of her claim for personal injuries, and a copy of which notice is attached to and made a part of count 1 as amended. The pertinent part of said notice is in the following words: 'The undersigned, while riding in an automobile over and along a public street in the city of Birmingham, Alabama, to-wit, over and along Division Avenue, and over and along a point on said avenue, to-wit, where said avenue intersects 65th Street and just east of that point of said intersection which is traversed by the railroad tracks of the L & N Railroad Company, was injured by said automobile running or falling into an open ditch which was then and there in said intersection, which said ditch was, to-wit, three feet deep and two and one-half feet wide and which said ditch was without guards or lights or other warning signals of the presence of said ditch in said intersection.'

Section 504, supra, is mandatory and substantial compliance is essential to the right to maintain 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 Birmingham, 177 Ala. 419, 59 So. 63.

The gravamen of count 1 as amended is that, defendant negligently permitted an open ditch about two and one-half feet wide and three feet deep to be and remain in the highway without guards or warning signals. Demurrer to this count was overruled without error.

The purpose of the statute in requiring the notice to be given is to enable the municipal authorities to investigate and determine whether or not the claim has merit, and if meritorious or doubtful to enable the municipality to adjust and settle the same without litigation. Authorities, supra.

In the case of Rodgers v. Commercial Casualty Ins. Co., 237 Ala. 301, 186 So. 684, 686, it was held: 'As stated in 33 Corpus Juris 474, the true sense of the word intersection must be ascertained by a full reference to the context in which it appears in the writing. And on the following page, it is said: 'As applied to a street or highway, the space occupied by two streets at the point where they cross each other: the space of a street or highway common to both streets or highways.'' See, also, Subdiv. (r) section 1, Title 36, Code of 1940.

The evidence showed that 65th Street and Division Avenue are intersecting streets in the city of Birmingham. 65th Street runs in a northerly and southerly direction and is one hundred and ten feet wide from property line to property line. The Louisville and Nashville Railroad Company owns, maintains and uses a right of way sixty feet wide in the center of 65th Street, and which right of way also runs in a northerly and southerly direction, that is, the right of way runs with the street and not across it. The remaining portion of 65th Street--the twenty-five feet on each side of the railroad right of way--is maintained by the city as a street, and used by the public as such.

Division Avenue runs in an easterly and westerly direction, is sixty feet wide from property line to property line. This distance between curb lines is thirty feet. The charted used and maintained, portion of Division Avenue extends to the railroad right of way, both on the east and west sides of said right of way. That is to say, that portion of Division Avenue occupied by...