City of Birmingham v. Starr

• Decision Date: 28 May 1896
• Citation: 112 Ala. 98,20 So. 424
• Parties: MAYOR, ETC., OF BIRMINGHAM v. STARR.
• Court: Alabama Supreme Court

20 So. 424

112 Ala. 98

MAYOR, ETC., OF BIRMINGHAM v. STARR.

Supreme Court of Alabama

May 28, 1896

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by Elizabeth C. Starr against the mayor and aldermen of Birmingham for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The complaint alleged that on and before October 11, 1894, when the accident complained of occurred, defendant was a municipal corporation, and that, as such, it was its duty to keep its highways in a good and safe condition for public travel by day and night; and that, on the day and year aforesaid, it negligently permitted a certain sidewalk in said city to be out of repair, by permitting a depression to remain therein of the width, to wit, of three feet, and depth of three inches, of which the appellant had notice; and that appellee, while walking along said sidewalk in the nighttime stumbled and fell, whereby she sustained injuries for which she sues, and demands $5,000 damages. Upon the trial plaintiff's testimony tended to show that on the sidewalk on the south side of Second avenue, between Eighteenth and Nineteenth streets, in the city of Birmingham, there was a depression or inequality in the sidewalk; that said inequality had been there a number of years, and that the avenue was one of the public thoroughfares of the city, and much frequented. Plaintiff testified on cross-examination that she had sometimes, in going home, passed down the sidewalk in question. There was also evidence of measurements of the place in question on the sidewalk, which were substantially the same as those described in the complaint. Edgar Murphy testified for plaintiff that he was employed by the Orange City Cycling Company, the point where the accident occurred; that he remembered the night plaintiff fell; that he heard her fall, and looked around, and saw her hit the ground; that there was a light in his store, about 30 feet from where plaintiff fell; that it would shine across the sidewalk where she fell; and that there was an arc electric light one-half block away. The witness was asked if he had known other persons to be injured at the point in question. Defendant objected to the question, because it was irrelevant, incompetent, illegal, and immaterial. The objection was overruled, and defendant excepted. The witness answered that he had known "other people to stumble in the depression, and nearly fall, and grunt." Defendant moved to exclude the answer, for the same reasons stated in the objections to the question. Charles Goldsmith, a witness for the plaintiff, was asked the question: "Well, if any accident occurred to you about that time [referring to the time of the accident], state when it was, and where it was in regard to the same place." Defendant objected to the question, because it was irrelevant, incompetent, and illegal. The objection was overruled, and defendant excepted. The witness answered: "I went in November or October last year on the 2:30 train,-A. G. S. train, *** and I passed 2d avenue, and fell, by stepping in place in front of bicycle store, there about where Mrs. Starr fell. It was on the south side of 2d avenue, on the sidewalk between 18th and 19th streets." Defendant moved to exclude the answer, on the same grounds stated in the objection to the question. The motion was overruled, and defendant excepted. C. B Bellsnyder, a witness for defendant, testified that he was familiar with the place where the plaintiff fell, and had seen the depression a number of times; that an electric light was on the corner, a half block away, which gave light for a block; that the depression had been in the sidewalk for a long time; and that, shortly after the plaintiff's accident, he had a conversation with her, and she showed him where she fell, and said to him at the time "that it was an awful place, and that she had had to pass there three or four times a day going home." The plaintiff, in rebuttal, denied that she had had such conversation as testified to by Bellsnyder.

The court, at the request of the plaintiff, gave the following written charges: (1) "The court charges the jury that a traveler who is ignorant of defects in a public sidewalk has a right to assume the safety of the public sidewalk, and is not bound to be on the lookout for special danger therein." (2) "The court charges the jury that although the jury may believe the plaintiff knew of the defects in the sidewalk into which she stepped, and fell on the sidewalk, that is not conclusive, as a matter of law that she was negligent." (3) "The court charges the jury that, if the defect in the sidewalk complained of existed for a long time or a considerable length of time, the jury may look to that circumstance in declaring whether the defendant city had notice of that fact." Defendant separately excepted to the giving of each of these charges and also separately excepted to the court's refusal to give each of the following charges, requested by it: (4) "The jury is instructed that if they shall believe from the evidence that the plaintiff knew of the depression in the sidewalk at the time of the injury, or by the use of ordinary care and prudence could have known of it, and she thoughtlessly and in an absent-minded way stepped into the depression, which thereby contributed proximately to the injury, then she cannot recover in this suit." (5) "The jury is instructed that if there was sufficient light thrown on the sidewalk in question, so that any dangerous or unsafe ditch or excavation that might be therein would be revealed by said light, and they shall believe from the evidence that Mrs. Starr knew of the place in question or had reason to believe that it did exist, then it was her duty, under the law, to be on the lookout and watch to detect it and avoid it; and if she failed so to do, and thereby contributed proximately to her injury, then she cannot recover." (6) "The jury is instructed that if they shall find from the evidence that the sidewalk where plaintiff is alleged to have fallen was dangerous, or not reasonably safe for the travel of persons exercising ordinary care and diligence, and that the condition of the sidewalk was known to plaintiff, or by the exercise of ordinary care and prudence could have been known to her, then the plaintiff was required to use more than ordinary care and caution to avoid the accident, and if she failed so to do, and thereby contributed proximately to the injury, she cannot recover in this action." (7) "The jury is charged that, when a dangerous or unsafe defect or excavation exists in the highways of a city,...