City of Birmingham v. Mauzey, 6 Div. 627

CourtSupreme Court of Alabama
Writing for the CourtSAYRE, J.
Citation214 Ala. 476,108 So. 382
Decision Date22 April 1926
Docket Number6 Div. 627
PartiesCITY OF BIRMINGHAM v. MAUZEY.

108 So. 382

214 Ala. 476

CITY OF BIRMINGHAM
v.

MAUZEY.

6 Div. 627

Supreme Court of Alabama

April 22, 1926


Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by Gertrude Mauzey against the City of Birmingham. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Code 1923, § 7326. Affirmed. [108 So. 383]

W.J. Wynn and W.K. Terry, both of Birmingham, for appellant.

Stokely, Scrivner, Dominick & Smith and D.G. Ewing, all of Birmingham, for appellee.

SAYRE, J.

The statement of the case contains count 1 of the complaint. With minor variations counts 2 and 3 alleged plaintiff's (appellee's) cause of action substantially as in count 1. Defendant complains that the declaration did not adequately inform it as to the location of the drainage sewer opening into which she fell. We think that reference to the complaint will refute this ground of demurrer. Nor was the complaint demurrable on other grounds. Defendant insists that it would impose upon it a duty not exacted by law, because it avers that "said drainage sewer was without bars, grating, or cover, or others means of preventing pedestrians from falling into said opening," whereas the law requires only that such openings shall be so maintained as not to endanger pedestrians unnecessarily; but the demurrer overlooks the conclusion drawn by the pleader from the facts alleged, viz.: "That thereby said street or highway was not in a reasonably safe condition for travelers"--a conclusion the pleader might reasonably draw and the jury might approve. The demurrer was properly overruled.

The action of the court in sustaining demurrers to special pleas 5 to 9, both inclusive, was free from error. These pleas were defective on various grounds: Plea 5 would attribute negligence to plaintiff in moving without the projected lines of the sidewalk, but alleges no ordinance forbidding plaintiff to walk where she did. Plea 6 was a mere conclusion of the pleader; it alleged no facts showing that plaintiff was guilty of negligence [108 So. 384] on her part. Plea 7 sets up the ordinance requiring pedestrians, when crossing streets, to keep within the projected lines of the sidewalk, but fails to allege that plaintiff's violation thereof contributed proximately to her injury. Plea 8 is in the same plight as plea 5, and plea 9 was a shorthand rendition of plea 4 which was submitted to the jury. Indeed, it appears that all these rejected pleas, save only plea 6, which alleges no facts, were designed to cover the same ground as plea 4, under which defendant was consistently allowed to prove everything it had in the way of defense.

Of first importance in this case is the question presented by defendant's plea that, in violation of an ordinance of the city of Birmingham, plaintiff when crossing the street went outside of the projected lines of the sidewalk parallel with which she was passing across the street. The ordinance in question reads as follows:

"Sec. 110. Crossing Streets. Pedestrians shall cross the highway only at highway intersections, and in crossing any street at the intersection thereof with another street shall pass over that part of the street as is included within the line of the sidewalk projected, and not diagonally; provided that this section shall only apply within the loop area of the city of Birmingham."

Plaintiff...

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24 practice notes
  • Shuttlesworth v. City of Birmingham, 6 Div. 979
    • United States
    • Alabama Court of Appeals
    • November 2, 1965
    ...So. 151. A municipal ordinance must be construed with a view towards the purpose for which it was adopted. City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. I think it is obvious that this ordinance--Section 1159--was not designed to suppress in any manner freedom of speech or assembly, b......
  • Morgan Hill Paving Co. v. Fonville, 6 Div. 17
    • United States
    • Supreme Court of Alabama
    • December 6, 1928
    ...covered in plea 6, to which demurrer was overruled. Davis v. Sorrell, 213 Ala. 191, 104 So. 397; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382. The matters set up in rejected pleas are found not to become litigable issues in pleas 5, 6, and A, to which demurrers were overruled, as......
  • Dunn v. Boise City, 4738
    • United States
    • United States State Supreme Court of Idaho
    • December 27, 1927
    ...of the notice. (28 Cyc. 1453 (h); 19 R. C. L. 1044, sec. 333; White, Negligence, Munic. Corp., sec. 674; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382; Ogle v. Kansas City, supra; Burroughs v. City of Lawrence, supra; Reid v. Kansas City, supra; Bowles v. City of Richmond, 147 Va.......
  • City of Birmingham v. Cox, 6 Div. 554.
    • United States
    • Supreme Court of Alabama
    • February 28, 1935
    ...et al., 196 Ala. 56, 71 So. 463; Benton v. City of Montgomery et al., 200 Ala. 97, 100, 75 So. 473; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382. The same is true of the time or place of the injury as claimed. There was error in refusing defendant's charge which we denominate A. ......
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24 cases
  • Shuttlesworth v. City of Birmingham, 6 Div. 979
    • United States
    • Alabama Court of Appeals
    • November 2, 1965
    ...So. 151. A municipal ordinance must be construed with a view towards the purpose for which it was adopted. City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. I think it is obvious that this ordinance--Section 1159--was not designed to suppress in any manner freedom of speech or assembly, b......
  • Morgan Hill Paving Co. v. Fonville, 6 Div. 17
    • United States
    • Supreme Court of Alabama
    • December 6, 1928
    ...covered in plea 6, to which demurrer was overruled. Davis v. Sorrell, 213 Ala. 191, 104 So. 397; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382. The matters set up in rejected pleas are found not to become litigable issues in pleas 5, 6, and A, to which demurrers were overruled, as......
  • Dunn v. Boise City, 4738
    • United States
    • United States State Supreme Court of Idaho
    • December 27, 1927
    ...of the notice. (28 Cyc. 1453 (h); 19 R. C. L. 1044, sec. 333; White, Negligence, Munic. Corp., sec. 674; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382; Ogle v. Kansas City, supra; Burroughs v. City of Lawrence, supra; Reid v. Kansas City, supra; Bowles v. City of Richmond, 147 Va.......
  • City of Birmingham v. Cox, 6 Div. 554.
    • United States
    • Supreme Court of Alabama
    • February 28, 1935
    ...et al., 196 Ala. 56, 71 So. 463; Benton v. City of Montgomery et al., 200 Ala. 97, 100, 75 So. 473; City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382. The same is true of the time or place of the injury as claimed. There was error in refusing defendant's charge which we denominate A. ......
  • Request a trial to view additional results

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