City of Birmingham v. Lewis

• Citation: 9 So. 243,92 Ala. 352
• Parties: MAYOR, ETC., OF BIRMINGHAM v. LEWIS.
• Decision Date: 29 April 1891
• Court: Supreme Court of Alabama

9 So. 243

92 Ala. 352

MAYOR, ETC., OF BIRMINGHAM v. LEWIS.

Supreme Court of Alabama

April 29, 1891

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

Action by Maggie Lewis against the mayor and aldermen of Birmingham to recover damages for personal injuries. No jury having been demanded by either party, the case was tried, as is allowed by the statute, by the circuit judge without a jury. Judgment for plaintiff in the sum of $1,000. Defendant appeals.

Cabaniss & Weakley, for appellant.

R L. Thornton, for appellee.

WALKER J.

In the year 1885 the authorities of the city of Birmingham constructed a storm-water sewer extending from the eastern portion of the city at Twenty-Seventh street down Second alley, which bisects the city blocks between Second and Third avenues, to the east side of Eighteenth street, where the sewer turns in a south-westerly direction, and crosses that street diagonally. The sewer was about three feet across, and from four to six feet deep, as variously stated by different witnesses. It was covered over to the surface level except that an opening into it was left on the east side of Eighteenth street, just west of a wooden bridge which spanned said sewer at its intersection with the sidewalk. Said hole or opening was about three feet by four feet across, and extended to the bottom of the sewer. The upper edges of the walls of the opening were on a level with the surface of the street, and there were no railings or other guards around it. In fact the pit was so situated that travelers on the street might readily fall into it; and there was nothing at all to warn them of the danger. Some of the witnesses stated that the bridge covered the entire width of the sidewalk, so that the part of the opening next to the sidewalk was in the gutter or drain of the street; while others stated that the bridge was narrower than the sidewalk, and that the opening into the sewer encroached upon the sidewalk so that it was immediately in the path of pedestrians. Appellee lived in a house on the north-east corner of said Second alley and Eighteenth street. She had been living there several weeks prior to the accident which was the occasion of this suit. On the opposite side of the street, but south of said Second alley, was the store of one Burney. On the night of February 21, 1889, appellee went across the street to make a purchase at said Burney's store, and in returning to the house where she lived she fell into said opening, and had one of her legs broken between the ankle and the knee. There was no light at said bridge, or near it. There was no contradiction of appellee's statement that during the time she had lived at said house she had not been on the street except at night, and that she did not know where the opening into the sewer was. As a result of said injury appellee was confined to her bed nine weeks. There was evidence that she had suffered great pain; that at the time of the trial-nearly a year after the injury was received-she could not walk without limping, and that the injury might be permanent. The place of said accident was on one of the principal streets of Birmingham, and was very near the business center of the city. The city authorities had all along known of said opening or hole, and had been notified of the fact that one or two other persons had fallen into it. A municipal corporation disregards one of its plainest duties when it permits an unguarded pit, such as that above described, 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 Council v. Wright, 72 Ala. 411; Albrittin v. Mayor, etc., 60 Ala. 486; Bradford v. Mayor, etc., (Ala.) 8 South. Rep. 683; Elliott, Roads & S. 452.

The excuse offered for the negligence is disclosed by the exceptions reserved to the refusal of the court to admit evidence to show that the city did not have the funds to improve Eighteenth street that it had levied the full rate of taxation allowed by law and had other expensive corporate duties to perform; and that it did not have the money or means to grade or repair Eighteenth street, or put it in a condition that would admit of the closing of said opening. It appeared without contradiction that said street had for a number of years been opened, worked, and put in condition for public travel, and cinders put on the...