City of Birmingham v. McKinnon

• Decision Date: 26 April 1917
• Docket Number: 6 Div. 531
• Citation: 75 So. 487,200 Ala. 111
• Parties: CITY OF BIRMINGHAM et al. v. McKINNON.
• Court: Alabama Supreme Court

75 So. 487

200 Ala. 111

CITY OF BIRMINGHAM et al. v. McKINNON.

6 Div. 531

Supreme Court of Alabama

April 26, 1917

On Rehearing, May 24, 1917

Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.

Action by H.A. McKinnon against the City of Birmingham and others. Judgment for plaintiff, and defendant named appealed to the Court of Appeals. Cause transferred, under Acts 1911, p. 449 § 6. Reversed and remanded. Application for rehearing denied.

See also, 71 So. 463.

Most of the facts sufficiently appear. The assignments of error referred to are as follows:

(2) The court erred in overruling appellant's objection to the following questions propounded by plaintiff to witness J.E. Burke: "Now, Mr. Burke, if the sidewalk in your territory, and in your beat, and under your supervision should become obstructed for the free use of travel for pedestrians, what was the duty of you and your policemen in a case of that kind?"

(3) Objection of appellant to answer of same witness "Well, if we found it out, it was our duty to have it removed, or see that they removed it."

(4) Question to same witness: "How often would that territory on Tuscaloosa avenue and Oak street, at the intersection down there that I have just asked you about, be patrolled by the policemen under you?"

(12) Overruling appellant's objection to the following question propounded by plaintiff to witness Mrs. W.W. Johnson: "How often during the months of March, April, and May did any city policemen patrol that neighborhood--that street along there? How often would you see them?"

(18) Refusal of the court to give at the request of appellant the following written charge: "(15) The court charges the jury that they cannot award plaintiff the verdict against defendant city of Birmingham on account of any alleged negligence on the part of the police officers of the city of Birmingham, or any of them, in failing to remove or cause to be removed the stakes or stubs over which plaintiff claims to have fallen."

(5) The court erred in overruling appellant's objection to the following question propounded by plaintiff to witness Gardner: "Tell the circumstances and how you--what first called your attention to these stakes or stobs."

(6) Overruling appellant's objection to answer of same witness: "About the first attention attracting me, I turned the corner there and stumbled over the stob right at the corner of the sidewalk."

(8) Overruling appellant's objection to the following question propounded by plaintiff to witness John Bryan: "Where were you when you noticed the stob for the first time."

(9) Answer of said witness: "It was the next morning after I fell over the stob."

(10) Overruling appellant's objection to the following question to Mrs. W.W. Johnson: "Were you present when anybody did come in contact with them, and stumble, prior to the time Dr. McKinnon fell over them?"

(11) Answer of Mrs. Johnson to the question: "Yes, sir; oh, yes, sir; I saw others fall--little children."

M.M. Ullman and W.A. Jenkins, both of Birmingham, for appellant.

F.E. Blackburn, of Birmingham, for appellee.

SAYRE J.

We held on a former appeal in this case (McKinnon v. City of Birmingham, 71 So. 463) that the complaint was not subject to any ground of the demurrer that had been taken against it. The complaint and the demurrer are just as they were then, and, for the purposes of this case at least, the ruling must stand, for it must be that, if the demurrer took objections to the complaint which should have been sustained, they were not then sustained, because they were not then presented to this court in a way that called for decision.

The second, third, fourth, twelfth, and eighteenth assignments of error have been answered by the opinion in the recent case of City of Birmingham v. Muller, 73 So. 30, where we held the rule that:

"The knowledge, or means of knowledge, of an officer of a municipality will be imputed to the municipality, where such officer is in charge of the streets, or is charged with the duty to make repairs or remedy defects, or it is his duty to report the matter to some officer with authority to act." 6 McQuillin, Mun.Corp. § 2810.

While, as a general proposition, municipal corporations are not liable in damages for the negligence of their police officers, yet where the duty to remedy defects or report the same to an officer with authority to act is imposed on officers who in other respects discharge governmental powers, in respect to the special duties so imposed they are the mere ministerial agents of the municipality, which therein is deemed to act, and is answerable, in its corporate capacity rather than as an arm of the state. City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542.

We have been unable to avoid the conclusion that the trial court erred in those rulings on questions of evidence which are shown by the fifth, sixth, eighth, ninth, tenth, and eleventh assignments of error. Plaintiff, in the nighttime, stumbled over a stake or stob and a wire that had been placed by the owner at the corner of a lot at the intersection of two streets. The lot, which was uninclosed towards the front, was on a level, approximately, with the intersecting sidewalks, which were paved, and the owner had set the stake at the corner and strung a wire between it and other stakes; his object being to prevent annoyance by pedestrians who, cutting the corner, would walk over his lawn. These stakes and the wire on numerous occasions had been replaced by the owner after other persons had torn them up, and there was some question whether they had been placed back in the exact places from which they had been taken. The pavement was not laid flush with the property line, but between the two a narrow strip of about 12 inches was left. The issue of fact between the parties was confined within narrow limits. Plaintiff contended that the stakes and the wire were placed immediately next to the inner line of the pavement, and even that the stake at the corner leaned over the pavement, thus obstructing a part of the sidewalk over which he had a right to pass, and over which he was passing at the time of his injury. If this view of the fact in controversy was accepted by the jury, plaintiff was entitled to recover, unless indeed he was guilty of contributory negligence. City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22.

Defendants on the other hand--the city and the owner of the lot were sued jointly--contended that the stake over which plaintiff stumbled was set at the property line and that the legal cause of plaintiff's mishap, for which they were in no wise responsible, was to be found in the fact that plaintiff in turning the corner trespassed upon the lot. Plaintiff was allowed, over defendants' objection, to prove that on a number of occasions other persons--little children, some of them--had fallen over the wire. This was prejudicial error, and for it the judgment must be reversed. Mayor and Aldermen of Birmingham v. Starr, 112 Ala. 98, 20 So. 424; Collins v. Dorchester, 6 Cush. (Mass.) 397. This was evidence of collateral facts which furnished no legitimate ground of inference as to the narrow issue contested between the parties, or any of the formal issues proposed by the pleading, but not made the subject of any real dispute. One of the witnesses testified that he had fallen over the stake at the corner; the places of the other occurrences are not fixed; they may have been away from the corner, and this may have been of some consequence, for unless a pedestrian were turning the corner in the narrow space between the outer corner of the lot and the inner corner of the pavement, it would seem improbable that he would fall over the wire unless he was going on or off the lot. At any rate, the fact that other persons fell over the wire or the stakes did not tend to show whether those things were within the property line or encroached upon the sidewalk. Non constat, these other persons were some of the trespassers, against whom the owner had set up a sort of barricade and a sign that their frequent intrusions were resented.

Birmingham Railway v. Alexander, 93 Ala. 133, 9 So. 525, was a very different kind of case. The gravamen of the charge...