City of Birmingham v. Maggio

• Decision Date: 07 October 1930
• Docket Number: 6 Div. 676.
• Citation: 131 So. 446,24 Ala.App. 107
• Parties: CITY OF BIRMINGHAM v. MAGGIO.
• Court: Alabama Court of Appeals

131 So. 446

24 Ala.App. 107

CITY OF BIRMINGHAM v. MAGGIO.

6 Div. 676.

Court of Appeals of Alabama

October 7, 1930

Rehearing Denied Nov. 11, 1930.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for damages for personal injuries by Mrs. Josephine Maggio against the City of Birmingham. From a judgment for plaintiff, defendant appeals.

Affirmed.

Horace C. Wilkinson and Fitts & Fitts, all of Birmingham, for appellant.

Altman & Koenig, of Birmingham, for appellee.

RICE J.

From appellant's brief, we quote the following:

"Appellee plaintiff, sued the City of Birmingham for personal injuries alleged to have been occasioned when on a night in November, 1927, she stepped through the broken or split lid which was the top over the mouth of a surface sewer, the allegation being that the City was negligent in having permitted the iron cover, or top of the sewer, to remain defective and broken for a long time, to-wit, six months. The accident is alleged to have happened in front of that certain house or residence known as 1101 St. Charles Street, in the City of Birmingham, and the statutory notice in pursuance of which the suit was brought described the place in the same way. As a matter of fact, the top or lid over the opening of a street sewer in the neighborhood of the place described in the complaint and averred in the notice was split or broken, and it reasonably appears from the evidence that the plaintiff did step through that opening or into the crevice between the parts of the iron top, suffering some injury as a consequence thereof."

It appears that this appeal is from a judgment, based upon the verdict of a jury, in appellee's favor, for the sum of $1,000.

The first question raised here is whether or not there was a fatal variance between the notice given by appellee, in pursuance of the terms of Code 1923, § 2031, and the proof adduced upon the trial, as to the point upon appellant's streets where her injuries were received.

In her sworn claim (Code 1923, § 2031, supra) she alleged that her injuries were received at a designated point "in front of a residence known as 1101 St. Charles Street." In the proof offered by her (there was none offered on behalf of appellant) it is indicated that her injuries were received at a point "on Eleventh Avenue and to the side (Italics ours) of the indicated residence." Appellant argues vigorously that a variance is thus shown, on account of which the "sworn claim," referred to, should have been excluded from the evidence, etc. But we think the point taken, and the argument made, hypercritical.

Discussing a similar question, our Supreme Court said, in the opinion in the case of McKinnon v City of Birmingham et al., 196 Ala. 56, 71 So. 463, 464, of a claim filed under the above-mentioned Code section (then section 1275, Code of Ala. 1907): "Technical accuracy is not required. It is enough if the board [in that case, board of Mayor and Aldermen-here, the City Commission] is fairly informed of the nature and amount of the claim, so that it can act intelligently in the investigation and allowance or rejection of the same."

In the instant case, we are persuaded, and hold, that the appellant was, by the sworn claim filed, "fairly informed of the nature and amount of the claim," as made on the trial of the case, and supported by the testimony offered, and that it was not misled, and, in the nature of things as described in the testimony, could not have been misled, in its investigation of the merits of the claim made, and later sued on, by the mere inadvertent use of the word "front," where, perhaps, "side" would have been more appropriate, in referring to the residence at 1101 St. Charles street, adjacent to the location of which appellee is shown to have received her injuries.

The trial court, in its oral charge, in one place, said to the jury that "*** it is the duty of the City to keep its public streets *** in a reasonably safe condition, etc." Exception was duly reserved to this portion of the charge.

It is doubtless true, notwithstanding the use of language almost identical with that here excepted to, in the opinion in the case of City of Bessemer v. Barnett, 212 Ala. 202 102 So. 23, that the strict duty of a city, with reference to the matter of keeping its streets, or sidewalks, in repair, and safe for travel, is as expressed in the opinion in City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542, 543, to wit: "Its duty, generally stated, is only to use due and proper care to see that its sidewalks [and streets, we add] are reasonably safe for persons exercising...