City of Birmingham v. Smith, 6 Div. 693.

• Court: Supreme Court of Alabama
• Writing for the Court: [241 Ala. 35] FOSTER, Justice.
• Citation: 200 So. 880,241 Ala. 32
• Parties: CITY OF BIRMINGHAM v. SMITH.
• Docket Number: 6 Div. 693.
• Decision Date: 27 February 1941

200 So. 880

241 Ala. 32

CITY OF BIRMINGHAM
v.
SMITH.

6 Div. 693.

Supreme Court of Alabama

February 27, 1941

Rehearing Denied March 27, 1941.

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

Action for damages for wrongful death by Robert W. Smith, as administrator of the estate of John Herman Rushing, deceased, against the City of Birmingham. From a judgment for plaintiff, defendant appeals.

Reversed and remanded. [200 So. 881]

John S. Foster, of Birmingham, for appellant.

Robt. W. Smith and Beddow, Ray & Jones, all of Birmingham, for appellee.

[241 Ala. 35] FOSTER, Justice.

Plaintiff's intestate was killed on a Sunday morning between 9 and 9:30, traveling east in an automobile on First Avenue North, in Birmingham. This was a paved thoroughfare, very broad (50 feet) and much used in that manner. There was laid in the street a double line of street car tracks. The city had on the day before taken up the old pavement, extending from the curb on the south side to near the track 14.9 feet, and along the curb east and west 9 feet, on the south side of the street, and had put down new concrete in [200 So. 882] that space, and piled up the old stone taken out in a heap with other debris, also extending from near the curb to near the car track, and had put on it four or five red lanterns, which were lighted Saturday night. This pile was about 5 feet west of the new work, was about 4 feet or more wide, and narrowed down as it extended to the car track, and about 30 inches high at the highest point, but sharply tapered at each end. Some very good photographs of it are in the record, and show the highest part near the center sharply tapering down at both ends.

The street was straight for a great distance as decedent approached this obstruction, placed there as a barrier or warning. Decedent was driving alone toward it with no obstruction between him and it, and with no apparent incident to distract his attention from what he was doing. Traffic was not heavy at that time and place. Within a short distance from this barrier, the automobile made a distinct turn to the left, and apparently one or more of the wheels struck the edge of this rock pile, and the car then made a more gradual turn to the right beyond the pile and between the car track and curb, and then made another gradual turn to the left and across the south car track and on to the north car track and struck an approaching street car on the north track. The left front of the automobile struck the street car a terrific blow and badly crushed it, causing it to skid around to the rear of the street car.

Decedent was injured in the accident and died soon afterwards. No one was with him. He had been drinking beer early that morning, and a distinct smell of whiskey was on his breath after the accident, at the hospital. The automobile was traveling very fast, 50 or 60 miles an hour. Visibility was good, and the barrier could be seen for at least 300 feet away, as one witness testified.

The street car which was struck did not interfere with passage around the barrier. There was a wide space open around it unobstructed in any respect. The collision was caused by the automobile returning diagonally across the south car track and continuing across the street to and upon the north car track on which the street car was approaching.

The trial was had on count "C", to which demurrer was overruled. Without discussion, we think that this count is not defective because the "quo modo of the alleged negligence is set out and the facts are insufficient to constitute negligence." City of Birmingham v. Wood,...