City of Birmingham v. Carle

CourtSupreme Court of Alabama
Citation68 So. 22,191 Ala. 539
Docket Number866
Decision Date14 January 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.


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 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 general purpose, it is also provided in section 1274 that the execution on a judgment against the municipality and the initial wrongdoer shall first issue against the initially negligent defendant in the judgment and the amount of the judgment is not demandable of the municipality, unless the initial wrongdoer is insolvent, or the initial wrongdoer can only respond in part, whereupon the municipality must pay the remainder. So, if there has been a joinder with the municipality of a person or corporation named in the mayor's response to the demand of the injured party, and the party so joined as a defendant is not shown to have been an initial wrongdoer, or if the jury, or the court trying the case without jury, may reasonably determine and do determine from the facts and circumstances in evidence that the thus joined party defendant was not initially culpable in respect of the defect defined in the statutes, or if some personal defense of such person or corporation is sustained, then the judgment may enter against the municipality only, and must be by it satisfied. In order to effect an orderly and certain administration of these statutes, and in order to adequately conserve the important rights by them recognized, and in order, further, to assure to the parties litigant the benefit of the conditional rights and liabilities arising from the joinder with the municipality of a person or corporation conceived to be an initial wrongdoer, the trial court should formulate, preferably in a writing delivered to the jury, distinct questions embodying in plain phrase these ideas: First, whether the person or corporation joined with the municipality was negligent in respect of the creation or existence of the defect in consequence of which, if so, the injury or wrong was done or suffered, and if such person or corporation was so negligent, and a personal defense was interposed by him or it, whether that defense has been...

To continue reading

Request your trial
63 cases
  • Anderson v. State, 6 Div. 481.
    • United States
    • Supreme Court of Alabama
    • 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 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 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 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

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT