City of Birmingham v. Coe

• Decision Date: 22 August 1944
• Docket Number: 6 Div. 58.
• Citation: 20 So.2d 110,31 Ala.App. 538
• Parties: CITY OF BIRMINGHAM v. COE.
• Court: Alabama Court of Appeals

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.

W. B. Harrison and Geo. P. Bondurant, both of Birmingham, for appellant.

Harrison Kendrick, of Birmingham, for appellee.

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 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 explanatory of liability of a municipality for injuries to vehicular travel and pedestrians sustained by reason of defects or hazards in streets and sidewalks within the city.

In a skillfully treated opinion, written by Justice McClellan for our Supreme Court, in City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, 25, L.R.A.1915F, 797, the eminent jurist has this to say: 'The general rule is that the public ways for their entire length and width should be reasonably safe for uses consistent with the reason for their establishment and existence. But this general rule is subject to the necessary qualification that the municipal authorities may, in the exercise of a sound and reasonable judgment, fairly and with due regard to the public needs and welfare apportion the surface of public streets to the use of vehicles, to the use of pedestrians, and to ornamentation and beneficial uses resulting from parkways. This practice is quite general, if not universal, in residence sections of the cities, and in such sections of many of the towns, in this state. Where the walkway and the vehicle way are adequate to their respective public needs, there is no reason why an appropriate civic taste may not be expressed by allotting the remaining surface of the streets, between the two ways mentioned, to the commendable ornamentation and public advantage that trees, surrounded by grass plots, will afford. The protection from depredation of trees in streets has long been a subject of express legislative concern. Code 1907, § 7834, and its several predecessors in that line.

Such apportionment is of, and consists with, the authority and control the municipalities have conferred upon them in respect of their streets. Judgmatically administered, the particular power and authority under consideration is not without a practical, economic benefit in the way of a sensible avoidance of unnecessary expenditure for paving in our municipalities. Areas so apportioned to tree or grass plots are, or course, still a part of the street; and municipal duty in respect to such...