City of Birmingham v. Comer

• Decision Date: 07 March 1940
• Docket Number: 6 Div. 558.
• Citation: 239 Ala. 152,194 So. 498
• Parties: CITY OF BIRMINGHAM v. COMER.
• Court: Alabama Supreme Court

194 So. 498

239 Ala. 152

CITY OF BIRMINGHAM v. COMER.

6 Div. 558.

Supreme Court of Alabama

March 7, 1940

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

Action for personal injuries by Ada Comer against the City of Birmingham. From a judgment for plaintiff, the defendant appeals.

Affirmed.

W. J Wynn and T. A. McFarland, both of Birmingham, for appellant.

Geo. R Carter and Wilkinson & Wilkinson, all of Birmingham, for appellee.

BOULDIN Justice.

Action for personal injuries to a pedestrian laid to the negligence of the city's servants in the maintenance of the sidewalk.

The cause was tried on Count 2 of the complaint to which demurrers were interposed and overruled. This ruling is presented for review.

The pertinent averments of the count are:

While walking on a public sidewalk at a designated point "Plaintiff was caused to fall into a chasm, gorge or hole, at the end of the wide part of said sidewalk, and that said chasm, gorge or hole at the end of the wide part of said sidewalk was abutting upon, and in close proximity to said sidewalk; injuring Plaintiff in this" (severe injuries here averred); that her injuries were the proximate result of "Negligently allowing the said chasm, gorge or hole, at the end of said wide part of said sidewalk, to be and remain at such close proximity to and abut upon said sidewalk, and in that there was no warning signal or device, barricade or display, at or in close proximity to said chasm, gorge or hole so that persons walking along said sidewalk could or would be apprised and informed of such chasm, gorge or hole."

The point is raised that this count joins two distinct causes of action in the same count: one, negligently allowing the chasm or hole to be at this point; two, negligently failing to place a warning signal or barrier for the protection of persons using the sidewalk. Clikos v. Long, 231 Ala. 424, 165 So. 394.

The point is not well taken. The count sues for one injury at one time and place. The conjunctive averment of no barrier or warning device, is further descriptive of the conditions at that time and place, which taken together rendered it not reasonably safe for the pedestrian.

Negligence is the breach of the duty to maintain the sidewalk in a reasonably safe condition for the use for which sidewalks exist. If not reasonably safe, it is dangerous within the meaning of the law.

That the place was unguarded was properly averred as an element in the situation rendering it unsafe. The description as a "chasm, gorge or hole," judged by its weakest alternative, "hole" is criticised for want of further description of size, depth or data disclosing a dangerous condition.

The count clearly imports the hole was large enough for plaintiff to fall into, and the step-off such as to cause plaintiff to fall and receive severe injuries.

If the alleged acts or omissions do not of themselves constitute negligence as a matter of law, but are sufficient to suggest and support an inference of negligence, the complaint must allege negligence, the plaintiff assuming the burden to prove negligence in the particular case.

The count in question meets these requirements and is sufficient under a long line of our cases. Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443; City of Birmingham v. Shirley, 209 Ala. 305, 96 So. 214; City of Montgomery v. Moon, 208 Ala. 472, 94 So. 337; City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; City of Birmingham v. Smith, 231 Ala. 95, 163 So. 611; City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818.

In the last-cited case the court dealt at considerable length with the legal duty to erect lateral guard rails or barriers alongside the traveled zone of streets and highways. These are to safeguard those who may get out of the zone prepared for travel and on ground not intended for travel. Some condition of unusual danger is held essential to put on the city the duty to maintain such safeguards.

The evidence, supporting the averments of the complaint discloses that in going northward on the east side of the city block described the sidewalk extends from store buildings to the curb, 10 feet in width; that on reaching a vacant lot the sidewalk is abruptly reduced to 4 feet in width, so placed as to leave a sudden ending of the wider...