City of Birmingham v. White

• Decision Date: 18 December 1941
• Docket Number: 6 Div. 694.,6 Div. 689
• Citation: 5 So.2d 464,242 Ala. 211
• Parties: CITY OF BIRMINGHAM v. WHITE et al.
• Court: Alabama Supreme Court

5 So.2d 464

242 Ala. 211

CITY OF BIRMINGHAM v. WHITE et al.

6 Div. 689, 6 Div. 694.

Supreme Court of Alabama

December 18, 1941

Rehearing Denied Jan. 22, 1942.

Appeal from Circuit Court, Jefferson County; J Edgar Bowron, Judge.

John S. Foster, of Birmingham, for appellant.

Taylor & Higgins and Waldrop Windham, all of Birmingham, for appellees.

BOULDIN Justice.

Mrs Mazie White sued the City of Birmingham for damages for personal injuries received in a fall while walking on a public street; negligence in construction or maintenance of the street being the basis of the action. J.W. White, her husband, also sued for the damages recoverable by a husband in such case. The cases were tried together on the same evidence touching the issue of actionable negligence. There was verdict for defendant. Motions for a new trial were granted on specified grounds only.

These grounds were the giving of written charges 10 and 11, and each of them, at the request of defendant. These charges read " 'Charge 10. If you are reasonably satisfied from the evidence that Mrs. White knew that there was a way provided for her to descend from the sidewalk to the street which was safer that the way she chose, and that as a proximate result of her choosing the way she did choose, she was injured then you cannot find for the plaintiff and against the defendant.' "

" 'Charge 11. The jury is instructed that where a driveway or alley descends from a sidewalk to the street, a person using the driveway alley cannot recover against a city for injuries sustained by falling in the driveway if such person knew that part of the alley was safer than the part where such person fell and if such person fell as the proximate result of choosing the less safer way.' "

The trial court, on motion for new trial, correctly held there was error in giving these charges. They do not correctly state the principle of law sought to be invoked.

The pedestrian is not as matter of law guilty of contributory negligence in taking the less safe way, known to be available, if in the exercise of ordinary care he could take either way. Negligence, the want of ordinary care, is the determining factor in such case. The charges omitted this essential requirement. Walker County v. Davis, 221 Ala. 195, 198, 128 So. 144; City Council of Montgomery v Wright, 72 Ala. 411, 47 Am.Rep. 422; 45 C.J. 902; 20 R.C.L. 120.

Appellant insists that defendant upon the undisputed evidence, was due the affirmative charge, which was requested, and refused; and, therefore, the giving of charges 10 and 11 was without injury, and furnished no ground for a new trial. It is the law that if defendant was due the affirmative charge, the giving of charges less favorable to defendant was not harmful, and furnished no ground for a new trial. Lambert v. Southern R. Co. et al., 214 Ala. 438, 108 So. 255; McDuff v. Kurn et al., 233 Ala. 619, 172 So. 886.

Appellant argues the affirmative charge was due on two grounds:

1st. That the evidence discloses no defect in the condition of the street paving as a basis for a charge of negligence.

2nd. That the undisputed evidence discloses contributory negligence as matter of law on the part of Mrs. White.

We are of opinion the first ground above is not well taken.

Photographs taken from different positions, a graph presented by defendant, with explanatory evidence, disclose conditions which we seek to describe as follows:

At this point on the street a grocery store building has stood for many years. The building fronts on the street some 25 feet. The pavement in front of the building extends from building to property line some 4 feet and on from the property line to the curb a width of some 8 feet. This was the first paving thereabout. Later, but many years ago, the street approaching from the west, passing in front of the building was paved, including gutter, curb and sidewalk. For proper drainage the grade passing in front of the building left the original curb some 16 inches high.

Just west of this building is an alley, intersecting the street. In constructing the new paving a driveway for this alley was installed.

The incline or ramp of this driveway, rising from the gutter to the level of the sidewalk, left a step-off in going west on the old sidewalk. This step-off from the old sidewalk to the inclined plane of the driveway was 16 inches in height at the curb line, diminishing to a point at the sidewalk level. This step-off was not left perpendicular. Instead, a wedge-shaped concrete incline or wall was inserted with a downward slope of 16 inches to 2 feet horizontal base.

Mrs. White was leaving the store building, going west on the old sidewalk, thence to the driveway and out into the street to a waiting automobile. In doing so, she cut diagonally across the sidewalk, taking a rather direct line to the street, and stepped off the sidewalk at a point near the curb, where the steep incline was inserted. Her feet flew from under her; she fell on her back, fracturing the femur at the hipjoint, and received external bruises.

In dealing with this lay-out we observe the entire pavement in front of the...