City of Birmingham v. Coe, 6 Div. 58.

CourtAlabama Court of Appeals
Writing for the CourtCARR, Judge.
Citation20 So.2d 110,31 Ala.App. 538
PartiesCITY OF BIRMINGHAM v. COE.
Decision Date22 August 1944
Docket Number6 Div. 58.

20 So.2d 110

31 Ala.App. 538

CITY OF BIRMINGHAM
v.

COE.

6 Div. 58.

Alabama Court of Appeals

August 22, 1944


Rehearing Denied Oct. 31, 1944.

[31 Ala.App. 539] W. B. Harrison and Geo. P. Bondurant, both of Birmingham, for appellant.

Harrison Kendrick, of Birmingham, for appellee.

[31 Ala.App. 540] CARR, Judge.

Appellee brought suit against the City of Birmingham for alleged personal and property injuries occasioned by a tree falling on her automobile while she was traveling one of the streets in said city.

Demurrers to complaint were overruled by the trial judge. By agreement of parties pleadings were in short by consent. After verdict and judgment in favor of appellee, appellant filed a motion for new trial, which was overruled. Neither the rulings on demurrers to complaint nor motion for new trial are before this court [20 So.2d 111] by assignment of error and therefore will not be considered. Birmingham Ry., L. & P. Co. v. Hinton, 158 Ala. 470, 48 So. 546; Tennessee Coal Iron & R. Co. v. Burgess, 158 Ala. 519, 47 So. 1029; Louisville & N. R. Co. v. Pettis, 206 Ala. 96, 89 So. 201; Halle v. Brooks, 209 Ala. 486, 96 So. 341.

Appellant's prime insistence relates to the action of the trial court in refusing its request for the affirmative charge.

It is not disputed nor denied that appellee was riding in her automobile about 4:30 P. M. on July 30th, 1942, along First Avenue South between 74th and 75th Streets in Birmingham when a large American elm tree became suddenly uprooted and fell into the street across the front part of her car. The elm was of large leaf variety, about thirty years old, and was growing between the sidewalk and curb line of the avenue. After the tree fell it was discovered that its tap root was decayed and rotten, something like two and a half feet underneath the body, and a branch root on the side was also decayed.

The contention of appellee, supported by her witnesses, is that the branch roots were on top of the ground. As related by one witness: 'It was a large tree and the sidewalk, you know, came up, and it was--yes, the roots had pushed the sidewalk up and the sidewalk was broken and the tree was sitting up on top of the ground.' Within the knowledge of witnesses who lived in the community this condition had existed for about six years. It was stated the tree was leaning toward the avenue and rotten places appeared on the body near the ground.

M. L. Israel, a tree surgeon, employed by appellant, testified that he examined the tree shortly after it fell and found it solid from the ground up. He found the tap root rotten and branch root decayed. In February, prior to the occasion of the injury, he had inspected and trimmed the tree, or it was done under his supervision. He did not remember seeing any roots on top of the ground as recounted by appellee's witnesses.

The testimony with reference to the velocity of the wind on the occasion in question varied in the opinion of different witnesses in the following descriptions: 'The wind was blowing strong.' 'It was blowing pretty hard.' 'There was a little wind, not what you would call a real hard wind.' 'A slight wind was blowing.'

The meteorologist testified that his records showed the velocity of the wind at the municipal airport at 4:25 P. M. on July 30th, 1942, to be 50 miles per hour. The vantage point from which the record was taken was some distance from the scene of the injury and the witness would not undertake 'except by the purest guess' the velocity at 75th Street and First Avenue. The elm was the only tree that fell in the neighborhood, and there was no other damage caused by the wind which was observed.

This in substance is the tendency of the testimony pertinent to the inquiry before us.

Title 37, § 502, Ala.Code 1940, and the editor's notes cited thereto, is...

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10 practice notes
  • Tidmore v. Mills, 2 Div. 756.
    • United States
    • Alabama Court of Appeals
    • August 15, 1947
    ...Bldg. & Loan Association v. Plemmons, 210 Ala. 286, 98 So. 12; Rooks v. Swift & Co., 210 Ala. 364, 98 So. 16; City of Birmingham v. Coe, 31 Ala.App. 538, 20 So.2d 110. We have given careful study and due consideration to all the evidence in the instant case, and we find ourselves in harmony......
  • City of Florence v. Stack, 8 Div. 23
    • United States
    • Supreme Court of Alabama
    • July 11, 1963
    ...of Birmingham v. Martin, 228 Ala. 318, 153 So. 235; City of Montgomery v. Ross, 195 Ala. 362, 70 So. 634; City of Birmingham v. Coe, 31 Ala.App. 538, 20 So.2d 110, certiorari denied 246 Ala. 231, 20 So.2d 113. * * *' Jacks v. City of Birmingham, 268 Ala. 138, 142-143, 105 So.2d 121, 125-126......
  • City of Tallassee v. Harris
    • United States
    • Supreme Court of Alabama
    • April 1, 1983
    ...of Birmingham v. Martin, 228 Ala. 318, 153 So. 235; City of Montgomery v. Ross, 195 Ala. 362, 70 So. 634; City of Birmingham v. Coe, 31 Ala.App. 538, 20 So.2d 110, certiorari denied 246 Ala. 231, 20 So.2d Jacks v. City of Birmingham, 268 Ala. 138, 142-143, 105 So.2d 121, 125-126 (1958). Thi......
  • Van Antwerp Realty Corp. v. Walters, 1 Div. 382
    • United States
    • Supreme Court of Alabama
    • December 22, 1949
    ...should be preceded by 'reasonably,' either in defining the duty of defendant or the right of the plaintiff. City of Birmingham v. Coe, 31 Ala.App. 538, 20 So.2d 110, certiorari denied 246 Ala. 231, 20 So.2d In any event, the determination of whether or not the case should be reversed for th......
  • Request a trial to view additional results
9 cases
  • Tidmore v. Mills, 2 Div. 756.
    • United States
    • Alabama Court of Appeals
    • August 15, 1947
    ...Loan Association v. Plemmons, 210 Ala. 286, 98 So. 12; Rooks v. Swift & Co., 210 Ala. 364, 98 So. 16; City of Birmingham v. Coe, 31 Ala.App. 538, 20 So.2d 110. We have given careful study and due consideration to all the evidence in the instant case, and we find ourselves in harmony wit......
  • City of Florence v. Stack, 8 Div. 23
    • United States
    • Supreme Court of Alabama
    • July 11, 1963
    ...of Birmingham v. Martin, 228 Ala. 318, 153 So. 235; City of Montgomery v. Ross, 195 Ala. 362, 70 So. 634; City of Birmingham v. Coe, 31 Ala.App. 538, 20 So.2d 110, certiorari denied 246 Ala. 231, 20 So.2d 113. * * *' Jacks v. City of Birmingham, 268 Ala. 138, 142-143, 105 So.2d 121, 125-126......
  • City of Tallassee v. Harris
    • United States
    • Supreme Court of Alabama
    • April 1, 1983
    ...of Birmingham v. Martin, 228 Ala. 318, 153 So. 235; City of Montgomery v. Ross, 195 Ala. 362, 70 So. 634; City of Birmingham v. Coe, 31 Ala.App. 538, 20 So.2d 110, certiorari denied 246 Ala. 231, 20 So.2d Jacks v. City of Birmingham, 268 Ala. 138, 142-143, 105 So.2d 121, 125-126 (1958). Thi......
  • Van Antwerp Realty Corp. v. Walters, 1 Div. 382
    • United States
    • Supreme Court of Alabama
    • December 22, 1949
    ...should be preceded by 'reasonably,' either in defining the duty of defendant or the right of the plaintiff. City of Birmingham v. Coe, 31 Ala.App. 538, 20 So.2d 110, certiorari denied 246 Ala. 231, 20 So.2d In any event, the determination of whether or not the case should be reversed for th......
  • Request a trial to view additional results

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