City of Birmingham v. Whitfield

• Decision Date: 06 August 1940
• Docket Number: 6 Div. 526.
• Parties: CITY OF BIRMINGHAM v. WHITFIELD.
• Court: Alabama Court of Appeals

197 So. 666

29 Ala.App. 454

CITY OF BIRMINGHAM v. WHITFIELD.

6 Div. 526.

Court of Appeals of Alabama

August 6, 1940

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Action for wrongful death by Marie Whitfield against the City of Birmingham. From a judgment for plaintiff, defendant appeals.

Affirmed.

W. J. Wynn and John S. Foster, both of Birmingham, for appellant.

J. L Drennen, of Birmingham, for appellee.

SIMPSON, Judge.

This action was brought under the homocide act, Sec. 5695, Code 1923, for the wrongful death of the plaintiff's five year old daughter. Upon verdict and judgment for plaintiff defendant appealed to this court.

The complaint, in one count, upon which recovery proceeded, was "Plaintiff, Marie Whitfield, claims of defendant, City of Birmingham, a municipal corporation, $5,000.00, as damages, for that on Wednesday, August 3, 1938, plaintiff was and is now a citizen of said City of Birmingham, having her residence at 556 Gamma Street in said City, and was the mother of Sara Whitfield, who was also known as Sara Robinson, and who at said time was of the age of five years having been born January 8, 1933, and resided with plaintiff, and had no legal father, and on said day, said Gamma Street was a public street in said City of Birmingham and intersected Avenue D, another public highway in said City of Birmingham and at said intersection there was a bridge across said Avenue D, there being at that time a branch or ditch through which water flowed, and said bridge was then and there maintained over and across said branch as a part of said highway and highways for the use of the public having occasion to cross said Avenue D at said intersection. That on said day, soon after a hard rain the said child was on said bridge, having come upon said bridge from a house on Gamma Street just across and on the north side of said bridge and on the east side of said Gamma Street, and at said time said water in said ditch was nearly as high as the bridge, and said child fell off of said bridge into the said water and was drowned, to the proximate damage of plaintiff, the mother of said child. Plaintiff avers that said bridge was not reasonably safe and was dangerous for the use of children of the age of her daughter, particularly when the water under it was high, or at flood times, and said bridge had no rails, banisters or guards for the protection of those using the same, and being constructed without banisters or rails, in times of high water, created and constituted an attractive nuisance to children of that age, and that the maintenance of said bridge as the same was maintained constituted a defect in said highway at said intersection, and that defendant had notice and knowledge of said fact and said dangers and defects and negligently permitted the same to exist after such knowledge or notice. Plaintiff avers that her said child was drowned, and she sustained said damage as a proximate result of said negligence of said defendant. Plaintiff avers that she has heretofore on to-wit: the 10th day of August, 1938, presented to said City of Birmingham, her claim in writing, duly verified in the manner provided by law in such cases, and that she has heretofore demanded in writing of defendant the name and address of the employee, contractor, agent or party who constructed said bridge and who may be jointly liable with said defendant in this cause, and whose duty it was to maintain said intersection in a reasonably safe condition, and has not been furnished and does not know the name of such agent, servant, employee or contractor, and notwithstanding she has made such claim, plaintiff has been paid nothing by defendant because or by reason of the death of her said child, hence this suit." (Emphasis supplied.)

Demurrers, general in form, were interposed to the complaint, asserting that the count failed to aver or show any legal duty owing by the defendant to the plaintiff or the breach of any such duty and that the quo modo of the negligence averred was set out in the complaint, but the facts stated were insufficient to constitute negligence. The action of the trial court in overruling these demurrers is one of the main insistences of error upon appeal.

Our conclusion on this question can best be illustrated by a few principles of law, quoted from the authorities, which, in our opinion, are governing.

1. "It was [is] the duty of the municipal corporation * * * to keep the street and sidewalks in a reasonably safe condition for travel and for use by its citizens and the public generally, and this duty extends to the entire width of the streets and sidewalks appropriated to such use and purposes." Birmingham v. Tayloe, 105 Ala. 170, 176, 16 So. 576, 577.

2. "A municipal corporation disregards one of its plainest duties when it permits an unguarded pit, such as that above described [being an opening of a storm sewer alongside a wooden bridge which spanned the sewer at the intersection of the street and sidewalk], to remain in a city thoroughfare, where of necessity it is a constant peril to travelers. In the present case the negligence of the authorities in this regard was obvious and glaring." City of Birmingham v. Lewis, 92 Ala. 352, 355, 9 So. 243.

3. "In addition to the duty to repair, the duty of a municipality to use ordinary care to keep its streets in condition for use includes the duty where there are dangerous obstructions, declivities, or excavations in or near the street, whether created by the municipality itself or by third persons, where it has notice thereof or notice is unnecessary, to take proper precautions to guard against accidents by the use of railings, barriers, lights or the like, especially at night." (Italics ours.) McQuillin Municipal Corporations, 2nd Edition, Vol. 7, Sec. 2984, p. 201; quoted with approval in City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818.

"Accordingly, the well settled general rule is that a municipality is required to erect and maintain suitable barriers where there are dangerous places along streets, which without such protection will render the streets unsafe to travelers in the usual modes by night or day," etc. McQuillin Municipal Corp., Sec. supra, p. 204-205.

4. "The proprietors of a bridge must maintain necessary guard rails thereon of a character sufficient to subserve the purpose of protecting bridge users, and are liable for resultant damages where they fail in such duty." 11 C.J.S., Bridges, p. 1109, § 72b.

5. "The height, width, length, manner of approach, and conditions of travel would enter into the question of reasonable safety in the particular case. As a rule, where there is need for a bridge, such safeguards should be provided." Hovater v. Franklin County, 217 Ala. 439, 440, 116 So. 526, 527. Note, 86 A.L.R. 1389 et seq.

Applying the law, quoted, it is the opinion of this court that, as against the demurrers interposed, the count was sufficient. The negligence counted on was the...