City of Birmingham v. Cox, 6 Div. 554.

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, Justice.
Citation230 Ala. 99,159 So. 818
Docket Number6 Div. 554.
Decision Date28 February 1935
PartiesCITY OF BIRMINGHAM v. COX.

159 So. 818

230 Ala. 99

CITY OF BIRMINGHAM
v.

COX.

6 Div. 554.

Supreme Court of Alabama

February 28, 1935


Appeal from Circuit Court, Jefferson County; J. F. Thompson, Judge.

Action for damages by Carl Cox against the City of Birmingham. From a judgment for plaintiff, defendant appeals.

Reversed and remanded. [159 So. 819]

W. J. Wynn and Leigh M. Clark, both of Birmingham, for appellant.

C. B. Powell and Vassar L. Allen, both of Birmingham, for appellee.

THOMAS, Justice.

The trial was had on counts 1 and 2 of the complaint as amended. Demurrers were overruled, the pleading was in short by consent, and the verdict was for plaintiff. There was motion for a new trial and the judgment was reduced and the motion overruled. The rulings on demurrer are assigned as error and duly urged for consideration.

It is established that negligence may be averred in a complaint in general terms, and when the allegation is of the acts constituting negligence relied upon, the pleading is demurrable, unless such acts, so averred, in themselves constitute actionable negligence as a matter of law. B'ham Ry., L. & P. Co. v. Barrett, 179 Ala. 274, 60 So. 262; Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443; Johnson v. Birmingham Railway, L. & P. Co., 149 Ala. 529, 43 So. 33.

There is no absolute duty upon a municipality to provide guard rails or barriers at or near an open ditch, sewer, or drain (volume 7, McQuillin on Municipal Corporations [2d Ed.] p. 204, § 2984), unless the place is dangerous and alongside the street, which without such protection will render that highway unsafe to travelers in the usual modes. Chance v. City of St. Joseph, 195 Mo.App. 1, 190 S.W. 24, 26; Puffer v. Inhabitants of Orange, 122 Mass. 389, 23 Am. Rep. 368; Daily v. City of Worcester, 131 Mass. 452.

The decisions of the Massachusetts court illustrate the question presented by the demurrer to the complaint. In Damon v. City of Boston, 149 Mass. 147, 151, 21 N.E. 235, the observation is made that: "The danger which requires a railing must be of an unusual character, such as bridges, declivities, excavations, steep banks, or deep water. Spaces adjoining roads, streets, and sidewalks, and unsuitable for travel, are often left open in both country and city; and a town or city is not bound to fence against them unless their condition is such as to expose travelers to unusual hazard. Sparhawk v. Salem, 1 Allen, 30, 32 [79 Am. Dec. 700]; Adams v. Natick, 13 Allen [Mass.] 429, 431; Marshall v. Ipswich, 110 Mass. 522." And that in Richardson v. City of Boston, 156 Mass. 145, 146, 30 N.E. 478, is: "It is not the possibility, however, that a traveler may get hurt if there is no railing or barrier that settles the question as to whether one should be put up, but whether one is required [159 So. 820] for the reasonable security of the public. Adams v. Natick, 13 Allen [Mass.] 429, 431. And that again depends on whether the danger to be guarded against is of such an unusual character as to expose the traveler to unusual hazard unless a railing or barrier is put up. Adams v. Natick, supra; Marshall v. Ipswich, 110 Mass. [522], 526; Sparhawk v. Salem, 1 Allen [Mass.] 30, 32 [79 Am. Dec. 700]; Damon v. Boston, 149 Mass. 147, 151, 21 N.E. 235."

The duty imposed by sections 2984, 2996, and 2998 in volume 7, McQuillin on Municipal Corporations (2d Ed.) pp. 201, 204, 223, 229, illustrates this important phase of municipal law. It is written:

"Given a condition in or close to a street, such as to be dangerous to travelers thereon, the municipality becomes burdened with a certain duty, provided, if notice is necessary, it has notice, or ought to have had notice thereof; and this is so even though the cause of the danger is lawful or the dangerous condition was wholly the act of a third person. This duty is to warn travelers of the danger so that they may turn back, pass around, or proceed with eyes open and watching for danger. 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.
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12 practice notes
  • City of Birmingham v. Young, 6 Div. 250.
    • United States
    • Supreme Court of Alabama
    • May 10, 1945
    ...the case was tried, place the open ditch in the street. City of Birmingham v. Jeff, 236 Ala. 540, 184 So. 281; City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818; Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; Code 1940, Tit. 37, § 504. If said ditch was in the street--the lane of......
  • Alabama Power Co. v. King, Nos. 6
    • United States
    • Supreme Court of Alabama
    • June 2, 1966
    ...183 Ala. 273, 61 So. 80, Ann.Cas.1916A, 543; Garing v. Boynton et al., 224 Ala. 22, 138 So. 279.' Again, in the City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818, the opinion sets forth 'The rules of our cases in this connection are stated in Alabama Baptist Hospital Board v. Carter, 226 ......
  • Hand v. Butts
    • United States
    • Supreme Court of Alabama
    • December 21, 1972
    ...Stores Corp., 253 Ala. 503, 45 So.2d 459; Prudential Ins. Co. of America v. Zeidler, 233 Ala. 328, 171 So. 634; City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818; Alabama Great Southern R. Co. v. Clark, 221 Ala. 616, 130 So. 318; Johnson v. Birmingham Ry., Light & Power Co., 149 Ala. 529,......
  • City of Birmingham v. Levens, 6 Div. 696.
    • United States
    • Supreme Court of Alabama
    • February 27, 1941
    ...precise. We cannot agree with the argument. See City of Birmingham v. Martin, 228 Ala. 318, 153 So. 235; City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A.1915F, 797. [200 So. 892.] Charge G--Assignment No. 7. This refused charg......
  • Request a trial to view additional results
12 cases
  • City of Birmingham v. Young, 6 Div. 250.
    • United States
    • Supreme Court of Alabama
    • May 10, 1945
    ...the case was tried, place the open ditch in the street. City of Birmingham v. Jeff, 236 Ala. 540, 184 So. 281; City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818; Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; Code 1940, Tit. 37, § 504. If said ditch was in the street--the lane of......
  • Alabama Power Co. v. King, Nos. 6
    • United States
    • Supreme Court of Alabama
    • June 2, 1966
    ...183 Ala. 273, 61 So. 80, Ann.Cas.1916A, 543; Garing v. Boynton et al., 224 Ala. 22, 138 So. 279.' Again, in the City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818, the opinion sets forth 'The rules of our cases in this connection are stated in Alabama Baptist Hospital Board v. Carter, 226 ......
  • Hand v. Butts
    • United States
    • Supreme Court of Alabama
    • December 21, 1972
    ...Stores Corp., 253 Ala. 503, 45 So.2d 459; Prudential Ins. Co. of America v. Zeidler, 233 Ala. 328, 171 So. 634; City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818; Alabama Great Southern R. Co. v. Clark, 221 Ala. 616, 130 So. 318; Johnson v. Birmingham Ry., Light & Power Co., 149 Ala. 529,......
  • City of Birmingham v. Levens, 6 Div. 696.
    • United States
    • Supreme Court of Alabama
    • February 27, 1941
    ...precise. We cannot agree with the argument. See City of Birmingham v. Martin, 228 Ala. 318, 153 So. 235; City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A.1915F, 797. [200 So. 892.] Charge G--Assignment No. 7. This refused charg......
  • Request a trial to view additional results

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