City of Birmingham v. Muller

• Decision Date: 23 November 1916
• Docket Number: 6 Div. 307
• Citation: 73 So. 30,197 Ala. 554
• Parties: CITY OF BIRMINGHAM v. MULLER.
• Court: Alabama Supreme Court

73 So. 30

197 Ala. 554

CITY OF BIRMINGHAM v. MULLER.

6 Div. 307

Supreme Court of Alabama

November 23, 1916

Appeal from City Court of Birmingham; John H. Miller, Judge.

Suit by Mrs. Harry Muller against the City of Birmingham. From judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Romaine Boyd and M.M. Ullman, both of Birmingham, for appellant.

Samuel B. Stern, of Birmingham, for appellee.

GARDNER J.

Much of the argument of appellant's counsel is addressed to the sufficiency of counts 7 and 8 as against demurrers interposed thereto. These counts were added to the complaint by amendment. A careful examination of the record fails to disclose any demurrers interposed to said counts. We are therefore not in a position to review any such ruling, and are not called upon to pass upon the sufficiency of said counts; but we cite without comment a few of our cases bearing somewhat upon the question argued: City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48; Lord v City of Mobile, 113 Ala. 360, 21 So. 366; Ensley v Smith, 165 Ala. 387, 51 So. 343; City of Birmingham v. Poole, 169 Ala. 177, 52 So. 937; City of B'ham v. Crane, 175 Ala. 90, 56 So. 723; City of Montgomery v. Wyche, 169 Ala. 189, 53 So. 786; City of Huntsville v. Phillips, 191 Ala. 524, 67 So. 664;

Ex parte Whaley, 188 Ala. 381, 66 So. 145.

Defendant in plea 2, demurrer to which was sustained, alleged that the Birmingham Coca-Cola Company was jointly liable, but was not made a party to the suit, thereby attempting to invoke the protection of Code, § 1274. It is unnecessary to pass upon this ruling of the court, further than to state that at the conclusion of the case the defendant recognized the inappropriateness of the method employed for presenting this question, by moving that plaintiff be nonsuited for failure to make said company a party defendant. That such a motion is the proper way to present the question was decided by this court in Ex parte Whaley, supra.

Defendant offered proof to show facts and circumstances connecting the Birmingham Coca-Cola Company with the injury to the bridge and at the conclusion of the evidence offered the motion referred to. This properly presents the question. On careful examination of the record, however, we conclude that it fails to disclose any such evidence as would warrant a reasonable inference that said company was in anywise negligent. Section 1274, supra, expressly provides that:

"No person shall be sued jointly with the city or town who would not be liable separately, irrespective of this provision."

This section received comment in the case of City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A.1915F, 797. The evidence failed to disclose any liability on the part of said Coca-Cola Company. There was therefore no error in overruling the motion for a nonsuit.

The contributory negligence relied upon by defendant in defense to plaintiff's suit was set out in plea 5, which plea was in substance the same as 3 and 4--mere knowledge or information on the part of plaintiff of the defect in the bridge, and her negligent failure to exercise due care to avoid stepping into the hole while crossing the bridge. While the sufficiency of pleas 3 and 4 as pleas of contributory negligence, under the rules of this court, may be doubted ( Evans v. Ala.-Ga. Syrup Co., 175 Ala. 85, 56 So. 529), yet it is unnecessary to enter into a consideration of the same, for the reason that the evidence offered on the trial, as well as the oral charge of the court, clearly disclosed that the defendant received under plea No. 5 the full benefit of the legal effect of pleas 3 and 4. Reversible error, therefore, is not here shown.

That plaintiff had made out her prima facie case cannot be questioned. We therefore find nothing in the giving of the one charge requested which would justify a reversal of the cause. The charge asserts no incorrect proposition of law, but merely that the burden rests upon the defendant to prove to the reasonable satisfaction of the jury the material averments of the plea of contributory negligence. City of Montgomery v. Wyche, supra.

It is insisted that count 7 rested for recovery upon the defendant's permitting the defect to remain in the bridge for the space of two days, whereas, as a matter of law, such length of time was not unreasonable under all the circumstances. The question of constructive notice is generally one for the jury. McKee v. City of New York, 135 A.D. 829, 120 N.Y.Supp. 149. We are persuaded, on examination of the evidence, that there is nothing here to take the case without the general rule. The cases relied upon by appellant (City of Warsaw v. Dunlap, 112 Ind. 576, 11 N.E. 623, 14 N.E. 568; McKee v. City of New York, supra) are not at all analogous to the case here presented. The affirmative charge was therefore properly refused as to count 7.

The eighth count alleged that the defendant negligently permitted the hole to remain in...