City of Birmingham v. Carle, 866

CourtSupreme Court of Alabama
Writing for the CourtMcCLELLAN, J.
Citation68 So. 22,191 Ala. 539
PartiesCITY OF BIRMINGHAM et al. v. CARLE.
Docket Number866
Decision Date14 January 1915

68 So. 22

191 Ala. 539

CITY OF BIRMINGHAM et al.
v.
CARLE.

No. 866

Supreme Court of Alabama

January 14, 1915


Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.

Action by Mrs. Amy Carlo against the City of Birmingham and another, for damages from a fall on a street. From a judgment for plaintiff against defendant city, it appeals. Affirmed.

The complaint claims damages for an injury which plaintiff alleges was caused when plaintiff "stumbled, tripped, fell, or was thrown by reason and as a proximate consequence of an obstruction, to wit, a wire extending over or across a part of the sidewalk at the intersection of Sixteenth street and Eleventh Avenue South."

Plea 3 is as follows:

Plaintiff herself was guilty of contributory negligence which proximately contributed to her said injury in this: That although there was provided a paved walkway five or more feet wide, running along Sixteenth street, and although she knew that a grass plot bordered on the outer edged paved walkway and although it was dark or nearly dark, she negligently undertook to cross said grass plot when there was a safe way open to her to reach the point to which she desired to go, to wit, by continuing along the paved walkway, and this she undertook to do, heedless or thoughtless of her own safety and without using her senses, to guard herself against danger and injury

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

Horace C. Wilkinson and G.R. Harsh, both of Birmingham, for appellee.

McCLELLAN, J.

By Code 1907, § 1273, the liability of municipalities for damages for injuries done or suffered is limited to two distinct classes of negligent misconduct or omission, viz.: (a) Where the wrong done or suffered was the proximate result of culpable act or omission of some agent, officer, or employé then engaged, within the line of his duty, in the municipality's service; (b) where the wrong done or suffered was the proximate result of culpable municipal omission "to remedy some defect in the streets, alleys, public ways, or buildings, after the same (i.e., defect as defined) has been called to the attention of the council, or after the same (i.e., defect as defined) had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council." Further in said section (1273) it is provided, touching the second (b) classification, ante, that where the liability of the municipality results from the breach by the municipality of its duty to remedy the defect, as defined in the statute--a defect to the existence of which the attention of the council had been called, or of which knowledge may be imputed in consequence of the unreasonable length of time the defect has existed, unremedied when the injury was done or wrong was suffered--the person or corporation culpable in respect of the existence of the defect as defined shall be "liable to an action on the same account by the party so injured." In the first class (a) are wrongs or injuries resulting from negligence of agents, etc., of the municipality, consistent with the doctrine of respondeat superior; and in the second class (b) are wrongs or injuries for which the municipalities are only liable for culpable neglect to remedy a condition negligently created or made or allowed to exist by a person or corporation not related in service to the municipality--a stranger to the municipal service or function.

New Code 1907, § 1274, requires that, where the municipality is sued, the person or corporation within the second class (b) defined in section 1273 shall be joined as a defendant, unless on appropriate demand the name of the so culpable person or corporation (stranger to the municipal service or function) is not furnished by the mayor within ten days after the demand; and an additional requirement and method for the joinder of such person or corporation is provided, where it develops that a person or corporation, within the second class (b) defined in section 1273, liable for the consequences of his or its culpable wrong, should have been [68 So. 24] originally joined as a defendant; and the plaintiff's failure to amend, so as to bring in such person or corporation as a defendant requires the nonsuiting of the plaintiff.

There is further provision in that statute (section 1274) forbidding the rendition of judgment against the municipal defendant under certain circumstances. According to this statute (section 1274), the circumstances under which judgment cannot be rendered against the municipal defendant alone are these: Where it is shown that the injury or wrong for redress for which the plaintiff sues was the proximate result of a defect created or existing by reason of the negligent act or omission of a person or corporation not related to the municipal service or function and for the culpable failure of the municipality, to remedy which defect the municipal defendant is made only solely jointly liable with such culpable person or corporation, unless there have been no service upon the person or corporation so initially culpable in the premises, or unless the judgment is rendered in favor of such person or corporation on some personal defense interposed by such person or corporation. The manifest legislative purpose was to prevent the rendition of judgment against the municipality for culpable neglect in respect of a condition not initially created by it, but for the negligent failure to remedy which it is made liable. In other words, where a defendant, within the description of the second class (b) of section 1273, is joined with the municipality as a defendant and served with process, judgment against the municipality alone cannot be rendered, unless the person or corporation, whose primary culpable act or omission gives rise to and affords the essential basis for the municipal neglect to remedy the defect, as defined, is also adjudged liable, provided the liability of such person or corporation is not averted by some personal defense.

Other indicated conditions and prescriptions of the statutes (sections 1273, 1274) in this regard being met, the legislative result is to hinge municipal liability on the imposition of liability upon the initial wrongdoer, except in the event a sustained defense personal to the initially negligent person or corporation intervened to avert the adjudgment of liability against such person or corporation. Pursuant to this...

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61 practice notes
  • Walker v. St. Louis-San Francisco Ry. Co., 6 Div. 412
    • United States
    • Supreme Court of Alabama
    • April 8, 1926
    ...as a sidewalk, and the proof disclosed that the subject of complaint was not on or over the sidewalk in City of Birmingham v. Carle, 191 Ala. 539, 550, 68 So. 22, L.R.A.1915F, 797. The introduction of the Georgia statute was held to present no variance in Southern Ry. Co. v. Jordan, 192 Ala......
  • Anderson v. State, 6 Div. 481.
    • United States
    • Alabama Supreme Court
    • November 2, 1922
    ...P. Co. v. Gonzalez, supra; Headley v. Harris, 196 Ala. 520, 71 So. 695; Sharp v. State, 193 Ala. 22, 28 69 So. 122; Birmingham v. Carle, 191 Ala. 539, 552, 68 So. 22, L. R. A. 1915F, 797; Gibson v. State, supra; A. G. S. R. Co. v. Frazier, 93 Ala. 45, 50, 9 So. 303, 30 Am. St. Rep. 28; L. &......
  • City of Birmingham v. Young, 6 Div. 250.
    • United States
    • Supreme Court of Alabama
    • May 10, 1945
    ...in respect to conditions immediately ahead. Dorminey v. City of Montgomery, 232 Ala. 47(2), 166 So. 689; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A.1915F, 797. 'This duty requires a person driving an automobile under the circumstances here disclosed 'to look ahead with his ......
  • City of Montgomery v. Quinn, 3 Div. 416.
    • United States
    • Supreme Court of Alabama
    • October 19, 1944
    ...constitute defects or a want of repair for which a city or town can be held liable. * * *." Our case of City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A.1915F, 797, is among the many authorities cited. That decision is rested upon City of Bessemer v. Whaley, 187 Ala. 525, 65......
  • Request a trial to view additional results
61 cases
  • Anderson v. State, 6 Div. 481.
    • United States
    • Alabama Supreme Court
    • November 2, 1922
    ...& P. Co. v. Gonzalez, supra; Headley v. Harris, 196 Ala. 520, 71 So. 695; Sharp v. State, 193 Ala. 22, 28 69 So. 122; Birmingham v. Carle, 191 Ala. 539, 552, 68 So. 22, L. R. A. 1915F, 797; Gibson v. State, supra; A. G. S. R. Co. v. Frazier, 93 Ala. 45, 50, 9 So. 303, 30 Am. St. Rep. 28; L.......
  • City of Birmingham v. Young, 6 Div. 250.
    • United States
    • Supreme Court of Alabama
    • May 10, 1945
    ...in respect to conditions immediately ahead. Dorminey v. City of Montgomery, 232 Ala. 47(2), 166 So. 689; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A.1915F, 797. 'This duty requires a person driving an automobile under the circumstances here disclosed 'to look ahead with his ......
  • Walker v. St. Louis-San Francisco Ry. Co., 6 Div. 412
    • United States
    • Supreme Court of Alabama
    • April 8, 1926
    ...as a sidewalk, and the proof disclosed that the subject of complaint was not on or over the sidewalk in City of Birmingham v. Carle, 191 Ala. 539, 550, 68 So. 22, L.R.A.1915F, 797. The introduction of the Georgia statute was held to present no variance in Southern Ry. Co. v. Jordan, 192 Ala......
  • City of Montgomery v. Quinn, 3 Div. 416.
    • United States
    • Supreme Court of Alabama
    • October 19, 1944
    ...to constitute defects or a want of repair for which a city or town can be held liable. * * *." Our case of City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A.1915F, 797, is among the many authorities cited. That decision is rested upon City of Bessemer v. Whaley, 187 Ala. 525, 65 S......
  • Request a trial to view additional results

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