City of Birmingham v. Cox
Decision Date | 28 February 1935 |
Docket Number | 6 Div. 554. |
Citation | 230 Ala. 99,159 So. 818 |
Parties | CITY OF BIRMINGHAM v. COX. |
Court | Alabama Supreme Court |
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.
W. J Wynn and Leigh M. Clark, both of Birmingham, for appellant.
C. B Powell and Vassar L. Allen, both of Birmingham, for appellee.
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: And that in Richardson v. City of Boston, 156 Mass. 145, 146, 30 N.E. 478, is:
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:
Adverting to the decisions from this jurisdiction, it is observed by Mr. Justice Sayre in City of Montgomery v. Wyche, 169 Ala. 181, 194, 195, 53 So. 786, 790, as follows:
As to our decisions stating the requirements of good pleading in a case like this, in Johnson v. Birmingham Railway, L. & P. Co., 149 Ala. 529, 43 So. 33, the observation is made that where a complaint in general terms avers negligence, and then avers the particular acts constituting the alleged negligence, without more, unless such act or acts in themselves amount to negligence, the complaint is demurrable. B'ham Ry., L. & P. Co. v. Barrett, 179 Ala. 274, 279, 60 So. 262; Alabama Fuel & Iron Co. v. Bush, 204 Ala. 658, 86 So. 541; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469; Eady v. Heaton, 224 Ala. 327, 140 So. 408; Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556.
The rules of our cases in this connection are stated in Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443 (headnotes 3 and 4), to be: (1) That a "complaint specifying particular acts as constituting negligence, as basis for personal injury action, is insufficient on apt demurrer, notwithstanding general averment of negligence, unless acts specified in themselves suggest negligence"; and (2) that "where acts alleged do not constitute negligence as matter of law, complaint must characterize acts as negligence; it being insufficient that negligence be assumed."
The negligence charged is that...
To continue reading
Request your trial- City of Birmingham v. Young
-
Alabama Power Co. v. King
...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
...& 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. 52......
- City of Birmingham v. Levens