City of Birmingham v. Levens

• Decision Date: 27 February 1941
• Docket Number: 6 Div. 696.
• Citation: 241 Ala. 47,200 So. 888
• Parties: CITY OF BIRMINGHAM v. LEVENS.
• Court: Alabama Supreme Court

200 So. 888

241 Ala. 47

CITY OF BIRMINGHAM v. LEVENS.

6 Div. 696.

Supreme Court of Alabama

February 27, 1941

Rehearing Denied March 27, 1941.

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

Action by Elizabeth I. Levens against the City of Birmingham for damages for personal injuries resulting from a fall on a sidewalk. From a judgment for plaintiff, defendant appeals.

Affirmed conditionally.

John S. Foster, of Birmingham, for appellant.

Clifford Emond, of Birmingham, for appellee.

FOSTER Justice.

This is an action for personal injuries received by plaintiff due to having sustained a fall on the sidewalk in the city of Birmingham.

The questions relate to rulings on evidence, refused charges and overruling a motion for a new trial.

The evidence shows that about ten or eleven o'clock in the morning, plaintiff stopped her car parallel with the curb, alighted on the right next to the curb, locked the door and turned to go to a doctor's office, and stumbled on an angle iron stake, two inches by a quarter of an inch, with one end embedded in the concrete sidewalk. It was sticking up four to six inches, and standing about twelve inches in from the outer side of the curb. It was said to be left from a stake holding a sign for "no parking" or "boulevard stop." The evidence for plaintiff tended to show, without contradiction, that this condition had existed in a location which the circumstances show could have been frequently used as plaintiff did on that occasion.

The court permitted the witness Balance, whose business was near this location, to testify over objection that he had seen people stumble over this obstruction in the day time but without any of them falling, and that he had done so himself. No details were given in relation to this accident sustained by plaintiff.

The court permitted the witness Nunnelly, whose place of business was also near the location in question, to testify that he had been in business out there since December, 1936, and had observed this piece of iron sticking up from the sidewalk and, over the objection of defendant, that he had seen four or five children and an equal number of adults stumble or trip; that he did so himself. This was over a period of two years. But he did not testify that any of them fell, and did not recall any particular incident nor its exact time, except that it was "day time."

The court also permitted the witness Burnett, who ran a shoe shop at this location, to testify that he had seen in the eighteen months he had been there many people trip over this obstruction, and one man had the heel of his shoe hung and torn off, which the witness had fixed. But he did not testify that any of them fell, nor give any other particulars than the shoe incident.

The question on which much argument in briefs submitted is grounded, relates to the legality of such evidence.

There are two theories on which it has been argued. If competent on one of them, others need not be considered. (1) That such evidence tends to show that the location was not reasonably safe for pedestrians in the exercise of due care, not knowing of its existence and not charged with a special duty to expect or look for something of the sort. (2) That it is a circumstance material to show that the city had notice of the defect and neglected to remove it as it should have done in the exercise of due diligence.

With respect to the first of them, the fact that the evidence does not show that any of the persons, who stumbled on the obstruction fell, should not be of controlling importance. For the fact of stumbling on such an obstruction without falling may have been due to the agility of the person rather than reasonable safety at the location. So that on this theory we will not give such importance to that circumstance. There are numerous cases decided by this and other courts in which there is no harmonious, well-defined principle declared as to when such evidence is or not admissible. In some it was admitted and in others denied.

Evidence that other people fell at the same location is said to be admissible on the issue of its dangerous qualities, if they occurred at about the time plaintiff fell, and the conditions existing were about the same. Perrine v. Southern Bitulithic Co., 190 Ala. 96, 66 So. 705.

Without much discussion, this had previously been held in Birmingham Union Ry. Co. v. Alexander, 93 Ala. 133 9 So. 525.

The question of the time of the occurrences when others fell seemed to have controlling influence in Mayor and Aldermen of Birmingham v. Starr, 112 Ala. 98, 107, 20 So. 424.

In Southern Railway Co. v. Posey, 124 Ala. 486, 488, 26 So. 914, the question was whether a railroad crossing was defective by reason of a hole caused by the wearing away of a plank. It was not disputed that it was a serious defect but was at one side and could do no injury to one going directly across in the usually traveled portion. As tending to show an unsafe condition as to one in the exercise of due care it was held to be competent to prove that the same condition had caused other accidents, and one witness was permitted to give his own experience about three weeks before the accident.

In Southern Railway Co. v. Lefan, 195 Ala. 295, 70 So. 249, the matter of similarity of conditions was held not to be one of exactitude, either as to time or circumstances, and that the similarity of conditions may be inferred from circumstances.

The foregoing cases are cited in Reed v. Hammel Dry Goods Co., 215 Ala. 494, 111 So. 337.

In the case of City of Birmingham v. McKinnon, 200 Ala. 111, 75 So. 487, this Court held that such evidence was admissible when experiences of the kind were an aid on a disputed issue of whether the location was dangerous, and when evidence of the experience of others aided in the solution of the issue. But when, as there, the stake and wire were eighteen to twenty-four inches above the level of the sidewalk they, ipso facto, constituted a dangerous defect in the sidewalk, and it was immaterial whether others had or not fallen over it, on the theory that its dangerous qualities were so certain as not to be affected by the experiences of others.

There seems to be unanimity of opinion at all events that when the issue contested in the case relates to the inherent dangerous character of the place, especially when it is not obviously dangerous to a person going over that particular location in the exercise of such care as the law imposes on him, it is competent to prove either that other persons were, or that no one else was, caused to sustain an accident under similar conditions at that location. See 45 Corpus Juris 1246; District of Columbia v. Armes, 107 U.S. 519, 2 S.Ct. 840, 27 L.Ed. 618.

Experiences of others at a location do not aid in analyzing its obviously pronounced qualities. Some situations are so conditioned that their effect on people making use of them do not tend to aid in determining whether they are reasonably safe; and the experiences of such people tend mainly to illustrate the extent of their care in its use. But not so where the danger is not so obvious or pronounced. Its reasonable safety may be then illustrated by the experiences of other people at the location under similar conditions.

The evidence here justifies the inference that this location was in the same condition at the time when the other accidents occurred, and that they were in the day time. The fact that no one was ever seen or known to fall except this plaintiff, though they stumbled, may tend to show that it was not so dangerous as contended. That so many stumbled on it tends to show that it was dangerous, at least to some extent.

We doubt if this Court should declare that the locus here in question was so certainly dangerous that incidental proof of its dangerous condition would be irrelevant as discussed in the McKinnon case, supra. If not so certainly dangerous, we cannot say that any legal evidence which tends to show its dangerous condition is erroneously admitted, however cumulative it may be. We have reached the conclusion that no reversible...