City of Birmingham v. Jeff

• Decision Date: 29 March 1938
• Docket Number: 6 Div. 205.
• Citation: 28 Ala.App. 343,184 So. 278
• Parties: CITY OF BIRMINGHAM v. JEFF.
• Court: Alabama Court of Appeals

184 So. 278

28 Ala.App. 343

CITY OF BIRMINGHAM v. JEFF.

6 Div. 205.

Court of Appeals of Alabama

March 29, 1938

Rehearing Denied April 19, 1938.

Reversed on Mandate Nov. 1, 1938.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages for personal injuries by Mrs. Herbert Jeff against the City of Birmingham. From a judgment for plaintiff, defendant appeals.

Affirmed.

Certiorari granted by Supreme Court in City of Birmingham v Jeff (6 Div. 339) 184 So. 281.

Clarence Mullins, W. J. Wynn, and Harvey T. Deramus, all of Birmingham, for appellant.

C. W Greer and George Frey, both of Birmingham, for appellee.

BRICKEN Presiding Judge.

The complaint in this case, as originally filed, was against several designated defendants, but upon the trial, by proper orders, the court eliminated all defendants except this appellant, City of Birmingham, against whom the jury returned a verdict in favor of plaintiff assessing her damages at $500, and judgment was rendered accordingly, from which this appeal was taken.

The cause was submitted to the jury only upon count A, which claims of the defendants the sum of $10,000, as damages, averring that on, to wit, June 28, 1936, the plaintiff, while walking along the east sidewalk of Fifty-Sixth street a short distance south of where said street intersects First Avenue South, in the City of Birmingham, she stumbled and fell into, over, or against two small metal wheels protruding approximately four inches from the surface of the sidewalk, and which wheels were partially obscured by grass growing in the sidewalk, which is alleged to constitute a defect, and the count alleges that all of the plaintiff's injuries were proximately caused by the negligence of the defendants in negligently causing or negligently allowing said defect to be or remain in the sidewalk. This count further avers the presentation of the sworn statement of the plaintiff's claim to the city clerk of the City of Birmingham stating substantially the manner in which her injuries were received and the time, day and place where the accident occurred, the damages claimed, and stating with substantial accuracy the nature and character of the injuries she received, and the street and house number where the plaintiff resided at the time of said accident.

The averments with reference to the presentation of said claim followed the language of the statute.

The claim referred to was as follows:

"President James M. Jones, Jr. President of the City Commission, City of Birmingham, Jefferson County, Alabama.

"The undersigned Mrs. Herbert Jeff represents to you as President of the City Commission that she has this day filed with the Clerk of the City Commission the following sworn statement:

"Mrs. Eunice Hewes, Clerk of the City Commission, City of Birmingham, Alabama.

"The undersigned Mrs. Herbert Jeff who is over the age of twenty-one years and who resides at 512 South 60th Street, Birmingham, Alabama was injured on Sunday night, June 28th, 1936 about 9:20 P. M. by stepping, stumbling or falling into and over a defect in a public street or Highway located on the West side of sidewalk just off of First Avenue South and 56th Street; that she approached the sidewalk nearest to a building occupied by Newman's Cleaners in the City of Birmingham, Jefferson County, Alabama. The claimant avers that a few inches just off the sidewalk and between the sidewalk and the curb in what is commonly called a 'grass plot' there was at the time of said injury, four pipes standing out of the ground and protruding for several inches above the level of the sidewalk. That between these pipes were and are two small wheels, which at the time of said injury were hidden by grass which had grown over or become matted over them. The said pipes and wheels as herein set out are approximately twelve inches from the edge of the sidewalk and are approximately two or three feet from the curb line. Claimant avers that said obstructions or defects herein described are along the East sidewalk of 56th Street just North of First Avenue South, which said public street at the point herein described was used as a public sidewalk for pedestrians and was a public highway or public street or public sidewalk in said City, County and State on said above named date.

"For the injuries herein before set out said Mrs. Herbert Jeff claims of the City of Birmingham, a municipal corporation the sum of Ten Thousand (10,000) Dollars, as damages, which said injuries and damages consists of the following: her right arm was broken at or near the elbow; her legs were badly bruised, lacerated, sprained and wrenched; that she suffered great physical pain and mental anguish, that she was made sick and sore, and that she is permanently injured. That she was caused to expend sums of money for doctors and doctors bills and medical treatment.

"The substantial manner in which the said Mrs. Herbert Jeff received her injuries and damages herein alleged was that she had been to a church meeting on 56th Street just off First Avenue South in Birmingham, Alabama and while stepping onto said sidewalk from the Street in an easterly direction her foot caught under one of the wheels or pipes placed near said sidewalk as heretofore alleged; that said accident happened in the night time and that there were no lights or other warning signals of said obstructions or defects; and from an examination of the place where the said accident happened, the place readily showed that this dangerous condition has existed for a great length of time and was known to the City of Birmingham or those charged with the duty of inspecting and keeping in a safe condition the street and sidewalks of said city or by the exercise of reasonable care and diligence should have been known by the said City of Birmingham.

"Mrs. Herbert Jeff

"State of Alabama

"Jefferson County.

"And demand is hereby made on you, as President of said City Commission of the City Birmingham, Alabama for the payment of this amount as herein above claimed; demand is also made on you to give me the name of all parties, if any, proper to be joined in civil action against the said City of Birmingham for the injury received as shown by the above statement filed with the City Clerk of the City Commission of the City of Birmingham, Alabama.

"Mrs. Herbert Jeff by George Frey, her attorney.

"State of Alabama

"Jefferson County.

"Before me, the undersigned authority in and for said County and said State, personally appeared Mrs. Herbert Jeff, who by me first...