City of Birmingham v. Latham

• Citation: 162 So. 675,230 Ala. 601
• Decision Date: 20 June 1935
• Docket Number: 6 Div. 636
• Parties: CITY OF BIRMINGHAM v. LATHAM.
• Court: Supreme Court of Alabama

162 So. 675

230 Ala. 601

CITY OF BIRMINGHAM v. LATHAM.

6 Div. 636

Supreme Court of Alabama

June 20, 1935

Appeal from Circuit Court, Jefferson County; J.F. Thompson, Judge.

Suit under homicide statute (Code 1923, § 5696) by Margaret Latham, as administratrix of the estate of William Ira Latham, deceased, against the city of Birmingham. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

W.J Wynn and Clarence Mullins, both of Birmingham, for appellant.

Frank M. Dixon and Bowers & Dixon, all of Birmingham, for appellee.

GARDNER Justice.

Plaintiff's intestate was employed by the city of Birmingham as one of the guards for the prisoners, and received a fatal injury while on defendant's truck, driven by one Edwards, also in the employ of the city, and while standing erect guarding some eighteen prisoners who were seated on the truck which had no sides. Deceased was 6 feet tall, and the truck floor some 3 feet from the ground. He was standing with his back to the cab, and facing the prisoners, when, in passing under the viaduct at Twenty-first street and on Avenue A, his head contacted the concrete surface of the viaduct, producing injuries which caused his death.

At this point, which, according to some of the proof, was on the left side of the avenue and near the left wall of the viaduct, the height above the ground is only 8 feet, and the proof indicates (photograph offered in evidence) that other objects had contacted the overhead concrete at this point. On the right side of the avenue the height is 11 feet above the street surface, and the avenue itself is of sufficient width to readily permit passage on the right side where is the greater height. In approaching the viaduct, as ran the truck on this occasion, the avenue is straight for some 400 feet and the viaduct plainly visible, the accident occurring about 4 o'clock in the afternoon of a clear day.

The driver, Edwards, while admitting driving on the left of the middle line of the avenue, yet insists he did not go so far to the left, and so near the left wall as other witnesses testify, and offers some excuse which is somewhat confusing but at least was for the jury's consideration.

It is, of course, understood that the left side of the avenue was the wrong side of the street, and violative of the city's ordinance. Some of the witnesses also insist the driver was exceeding the speed permitted by the city laws, though there is evidence to the contrary.

The jury returned a verdict for the plaintiff specifically under count 4, which was based upon the homicide statute, and which rested for recovery upon the alleged negligence of the city in maintaining the viaduct so that the street below (Avenue A South) was not reasonably safe for the public use.

The pleading was in short by consent, with the customary agreement relating thereto.

Under the undisputed proof it was the city's duty to maintain this viaduct, and we are of the opinion that whether or not it was so maintained as to render the street below unsafe for public use, and, therefore, negligently maintained, was a question for the jury.

Nor do we think deceased was guilty of contributory negligence as a matter of law for riding standing erect on the truck, with his back to the cab and facing the prisoners. There was no seat provided, and the proof was that it was customary for the guard to so stand--this, in order to properly guard the prisoners under his care, and in the correct discharge of his duty. This evidence was admissible for this purpose, and properly so received. Deceased is not shown to have had any knowledge of the danger, and nothing to indicate any lack of skill on the driver's part, or that deceased had any warning that he could not trust to the vigilance of the truck driver. Bradford v. Carson, 223 Ala. 594, 137 So. 426; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610.

The authorities relied upon by the city (Warden v. Louisville & Nashville R. Co., 94 Ala. 277, 10 So. 276, 14 L.R.A. 552; Hill v. Birmingham Union Ry. Co., 100 Ala. 447, 14 So. 201; Andrews v. Birmingham Mineral R. Co., 99 Ala. 438, 12 So. 432; George v. M. & O.R. Co., 109 Ala. 245, 19 So. 784; Stoudemire v. Davis, 208 Ala. 495, 94 So. 498) deal with the question of needless exposure to risk. There is a marked distinction between those cases and one where the person charged with contributory negligence was in the discharge of his duty in the manner required by the exigencies of the occasion. As said in 45 Corpus Juris 969: "In determining whether one who has voluntarily exposed himself to danger was in the exercise of ordinary care, the fact that the act was done in the discharge of his duty is to be considered." The following cases are illustrative of the principle: Maskell v. Alexander, 91 Wash. 363, 157 P. 872; Smith v. Twin State Gas Co., 83 N.H. 439, 144 A. 57, 783, 61 A.L.R. 1015; Muhs v. Brooklyn Fire Ins. Salvage Corps, 89 A.D. 389, 85 N.Y.S. 911.

The jury might reasonably infer that deceased was required to occupy the position he did on the truck in order to correctly discharge his duty as guard, and the question of his contributory negligence was for their consideration.

And if the viaduct was negligently maintained by the city to the danger of the traveling public, the fact that it was constructed in conformity to the city ordinance would not relieve the city of responsibility for such negligent maintenance. City of Montgomery v. Ross, 195 Ala. 362, 70 So. 634.

The jury could reasonably infer that the height of only 8 feet above the surface of the street required some warning signal to the public, without which negligence might well be predicated.

But involved in the case was the question of proximate cause, resting at the very foundation of the right of action. Count 4 alleges that the injuries were received as a proximate consequence of the negligent maintenance of the viaduct, and the plea of the general issue alone sufficed to present that fundamental matter.

First upon the question of negligence, it is appropriate to revert to some of our approved definitions. In Wheeler v. Standard Steel Co., 196 Ala. 634, 72 So. 254, 256, it was observed: "Upon the question of negligence, this court, in the recent case of So. Ry. Co. v. Carter, 164 Ala. 103, 51 So. 147, made use of the following quotations which we think find some application here: 'A much-quoted definition of negligence is that of Blythe v. Birmingham Waterworks, 11 Ex. 781, as follows: "The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." In commenting upon this definition Mr. Pollock has said: "Now, a reasonable man can be guided only by a reasonable estimate of probabilities." If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither reject what he can forecast as probable, nor waste his anxiety on events that are barely possible.' "

And upon the matter of proximate cause, this court has said: "If the wrong and the resulting damage are not known by common experience to be naturally and usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, then the wrong and damage are not sufficiently conjoined and concatenated as cause and effect to support an action." Mobile & O.R. Co. v. Christian Moerlein Brew. Co., 146 Ala. 404, 41 So. 17, 18. Or, as differently stated in 29 Cyc. 528, found quoted in Whitman v. M. & O.R. Co., 217 Ala. 70, 114 So. 912: "When the act and the injury are not known by common experience to be naturally and reasonably in sequence and the injury does not according to the ordinary course of events follow from the act, they are not sufficiently connected to make the act a proximate cause."

These definitions are based upon the theory that while a person is expected to anticipate and guard against all reasonable consequences, yet he is not expected to anticipate and guard against that which no reasonable man would expect to occur. Western Ry. Co. v. Mutch, 97 Ala. 194, 11 So. 894 21 L.R.A. 316, 38 Am.St.Rep. 179; Holt v. Fountain, 218 Ala. 661, 120 So. 149; Louisville & N.R. Co. v. Quick, 125 Ala. 553, 28 So. 14; Ruffin Coal & Trans. Co. v. Rich, 214 Ala. 633, 108 So. 596; Armstrong v. Street Ry. Co., 123 Ala. 233, 26 So. 349; Morgan Hill Paving Co. v. Fonvilla, 218...