City of Birmingham v. Gordon

• Decision Date: 07 April 1910
• Citation: 52 So. 430,167 Ala. 334
• Parties: MAYOR, ETC., OF CITY OF BIRMINGHAM v. GORDON.
• Court: Alabama Supreme Court

52 So. 430

167 Ala. 334

MAYOR, ETC., OF CITY OF BIRMINGHAM v. GORDON.

Supreme Court of Alabama

April 7, 1910

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by Carrie F. Gordon against the Mayor and Aldermen of Birmingham. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint was as follows: "Plaintiff claims of the defendant $10,000 as damages, for that heretofore, to wit, on the 22d day of December, 1904, while plaintiff was passing along one of the public highways in the city of Birmingham in Jefferson county, Alabama, to wit, on the sidewalk on Twenty-Second street, between Fifth and Sixth avenues, in said city, plaintiff was thrown or caused to fall, and as a proximate consequence thereof her left kneecap was dislocated. [ Here follows a catalogue of injuries, some of which are alleged to be permanent in their nature, together with a claim for damages for same.] Plaintiff alleges that she was thrown or caused to fall as aforesaid, and suffered said damages and injuries, by reason of and as a proximate consequence of the negligence of defendant, whose duty it was to use due care to have and keep said highway, to wit, said sidewalk, at said point, in a reasonably safe condition for the public to pass along, and defendant so negligently conducted itself in that regard that said sidewalk at said point was not in a reasonably safe condition for the public to pass along."

The demurrers were: "(1) That said complaint was inconsistent and repugnant, in that it claims damages for a failure to use due care to keep said highway in a reasonably safe condition; whereas, in another part, it claims damages for a failure to keep the same in a reasonably safe condition. (2) It does not aver or show any violation of any duty which the defendant owed the plaintiff in the premises. (3) Said count does not aver that defendant failed to use reasonable care to keep said highway in a reasonably safe condition. (4) It avers a conclusion of the pleader, yet exhibits facts which show that defendant was not negligent."

These demurrers being overruled, the pleas of general issue and contributory negligence were interposed.

Charges 11 and 12, refused to the defendant, are as follows "(11) The court charges you that if you believe, from all the evidence in this case, that the plaintiff knew that the sidewalk at the place where she was injured was defective and in a dangerous condition, and would likely or probably cause her to fall, and yet with such knowledge she walked onto such defective places, and was injured as a proximate consequence thereof, you must find for the defendant. (12) The court charges you that if you believe, from all the evidence, that the plaintiff was injured as a proximate consequence of being thrown by stepping upon a loose brick and if you further believe, from the evidence, that plaintiff knew that the brick at said place were loose, and that she walked through said place, attempting to pick out the safer bricks upon which to step, and that she selected a brick which gave way from her stepping upon it, then you must find a verdict for the defendant."

Robt. H. Thach, for appellant.

Bowman Harsh & Beddow, for appellee.

MAYFIELD J.

The plaintiff, a woman, sued the city of Birmingham to recover damages for personal injuries alleged to be the result of her falling upon one of the defendant's sidewalks, which was alleged to be defective. The plaintiff alleges that the defect in the sidewalk was the result of the defendant's negligence; that such...