City of Birmingham v. Wood

• Decision Date: 27 June 1940
• Docket Number: 6 Div. 702.
• Citation: 197 So. 885,240 Ala. 138
• Parties: CITY OF BIRMINGHAM v. WOOD.
• Court: Alabama Supreme Court

197 So. 885

240 Ala. 138

CITY OF BIRMINGHAM v. WOOD.

6 Div. 702.

Supreme Court of Alabama

June 27, 1940

Rehearing Denied Oct. 10, 1940.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for personal injuries by Janie Wood against the City of Birmingham and another. From a judgment for plaintiff, the named defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Affirmed.

In pedestrian's action against city for injuries sustained in fall on defective sidewalk, charge that jury could consider duration of existence of defect prior to fall and general appearance of defect and its obviousness or lack of obviousness to person observing it, in determining whether city ought to have known of existence of defect, was argumentative, and hence refusal to give charge was not reversible error. Code 1923, § 2030.

The following charge (assignment 15) was refused to defendant "If you should find from the evidence that there was a defect in the sidewalk, I charge you that in determining whether or not the City ought to have known of its existence you may take into consideration not only the duration of its existence prior to the time Mrs. Wood fell, but you may take into consideration the general appearance of the defect and its obviousness or lack of obviousness to a person observing it."

John S. Foster, of Birmingham, for appellant.

Harsh, Harsh & Hare, of Birmingham, for appellee.

FOSTER Justice.

This is an action for damages for personal injuries resulting from a fall alleged to have been caused by a defect in the sidewalk.

The counts of the complaint (1, 4 and 6) which were submitted to the jury are thought to be defective by reason of the insufficiency of averment showing that the condition was not reasonably safe for use by the public.

Those counts do make that specific averment, but it is contended that the physical facts alleged are not sufficient predicate to support that averment of an absence of reasonable safety at that location. The physical facts alleged to exist at the particular place are that there was a "defect or elevation or raised place in said sidewalk," and that while proceeding along or upon said sidewalk plaintiff's foot came in contact with it, proximately causing her injuries, and that defendants negligently caused or negligently allowed said sidewalk to be or remain in a condition not reasonably safe for use by the public.

The point made is that the alleged "defect or elevation or raised place" is not described with such particularity as to show that it is capable of not being reasonably safe for use by the public. We agree that the complaint must allege enough particulars to show that it may be thus reasonably unsafe as alleged. Mobile L. & R. R. Co. v. Therrill, 205 Ala. 553, 88 So. 677.

Whether those particulars may support the allegation of the inference from them that the place was not reasonably safe is a question of law to be raised by demurrer. West v. Spratling, 204 Ala. 478, 479 (4), 86 So. 32.

Great particularity of detail is not necessary. It is sufficient to state enough detail to show that the location may be so defective as to be dangerous, and then to state that it was dangerous. "Anything that may reasonably be expected to interfere with the safe use of a sidewalk by pedestrians is a defect." City of Bessemer v. Whaley, 187 Ala. 525, 529, 65 So. 542, 543.

The complaint in this respect properly interpreted means that the sidewalk was so defective by reason of an elevation or raised place, as not to be reasonably safe for use by the public, and that defendants negligently caused it to be so or negligently allowed it so to remain, so as to exist at the time of plaintiff's injuries, and to be the proximate cause of them. So interpreted, it is not subject to the objection now urged.

The particular legal duty alleged to have been breached is the negligence of defendants in causing or negligently allowing such dangerous place to exist. So far as the city is concerned, the law has placed such duty upon it. Bessemer v. Whaley, supra; Brooks v. Birmingham, Ala.Sup., 194 So. 525. The allegation of negligence in that respect imports that the defect had existed sufficiently long to have been discovered and remedied by defendant by the exercise of due care. Lord v. City of Mobile, 113 Ala. 360, 21 So. 366; 15 Alabama Digest, Municipal Corporations, page 214, + 816(4).

Appellant also insists that the evidence shows such a trivial elevation in the sidewalk as not to be dangerous, and not sufficient to go to the jury on that question. An assistant city engineer made careful measurements of the location. He says that there was a four foot block walk. The street extends east and west. The southwest corner of one of the four foot blocks was raised two inches, and the south-east corner was raised one inch. The north side of the block was level with the balance of the sidewalk. A tree was between the south side of this block and the curb situated in a grass plot which was six feet wide between the curb and sidewalk, and the tree was about in the center of it. A root of that tree had grown under the block in the sidewalk and caused its elevation as described.

Appellant insists with much interest and care that such a condition is so trivial as that it is not sufficient upon which to predicate a finding of negligence by the city. Counsel have cited many cases, all of which we have examined, to support their contention. In most of them there was either a slight depression in the sidewalk or, if an elevation, there were some circumstances which lessened the danger or the duty of the city, not here apparent.

We take for instance the case cited of Hirst v. City of Missouri Valley, 193 Iowa 1225, 188 N.W. 783. The sidewalk consisted of two rows of cement blocks three by four feet. There was a small crack between the rows. Four of the blocks in one row at the outside were about three inches lower than the other row, being depressed at the side on the north. The other side of those blocks was practically level. The court followed Johnson v. City of Ames, 181 Iowa 65, 162 N.W. 858, that such a depression is not such a defect as to support a claim of negligent injury resulting from it. It distinguished the situation from that in the case of Geer v. City of Des Moines, 183 Iowa 837, 839, 167 N.W. 635, 636, on the ground that the latter case was an elevation, and in it the Johnson case, supra, was considered and the difference found to be material. We quote from the Geer case, supra, as follows:

"In the case at bar there was evidence from which the jury could find that a section or block of the cement from which the walk was made had been lifted to a height of from one to three inches. That such an obstruction in an otherwise smooth walk is one against which a pedestrian is likely to stumble and fall is very manifest, and this is particularly true when the vision of the traveler is obscured by darkness, as is here shown to be the case. That such was the character of this obstruction is also shown by the fact that several others had stumbled and fallen over it. * * *

"To hold that as a matter of law the admitted defect in the walk was not of such character as to charge the city with negligence in failing to remedy it within a reasonable time after notice, actual or constructive, of its existence, would be to establish a precedent out of harmony with our adjudged cases and inconsistent with the spirit of the statute which imposes upon cities and towns the duty to maintain their public ways free from nuisances and reasonably safe for their intended use. The appellant relies principally upon the recent case of Johnson v. Ames , 162 N.W. 858, but we do not regard it as controlling upon the facts now before us. In the Johnson Case the defect complained of was a slight depression in the surface of the walk, and, among other things, one of the important questions to be considered was that of constructive notice to the city. Concerning this we said:

" 'It must have been a defect of such character as, in view of its location and the use made of the walk, to attract the attention of the officers of the city and cause them, in the exercise of that degree of caution which an ordinarily prudent person would exercise under like circumstances, to anticipate danger therefrom to the pedestrian passing along the walk, and we are of opinion that the defect was not such as thus to put the city on its guard.'

"In so holding the opinion draws a distinction between a slight depression in a walk and an obstruction elevated above its surface--a difference which, within limits, may be of material consideration."

We have in this State considered cases where the defect was an elevation one and three-quarters to four inches. See, City of Decatur v. Gilliam, 222 Ala. 377, 133 So. 25; Birmingham v. Henderson, 26 Ala.App. 389, 160 So. 778.

Each case is dependent upon its own circumstances. The photographs of this situation are in the record, and were before the jury. It is pointed out that the kodak was held near the ground to magnify this elevation. But it shows the nature of the condition, and probable stance of the photographer.

We think it was within the province of the jury to find that this was a defect, and that it had existed so long, and was so obvious as to justify a further finding that in that time and before plaintiff was injured, the city should have discovered and remedied it. Plaintiff was injured in the night time, if that is material.

Mrs Iva M. Reilly was made a defendant in the suit in compliance with information furnished by the city to plaintiff on her demand under section 2030, Code, as the person jointly liable to plaintiff. Upon...