City of Birmingham v. Smith, 6 Div. 651

CourtSupreme Court of Alabama
Writing for the CourtBOULDIN, Justice.
Citation231 Ala. 95,163 So. 611
PartiesCITY OF BIRMINGHAM v. SMITH.
Decision Date17 October 1935
Docket Number6 Div. 651

163 So. 611

231 Ala. 95

CITY OF BIRMINGHAM
v.

SMITH.

6 Div. 651

Supreme Court of Alabama

October 17, 1935


Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages by Lela Smith against the City of Birmingham. From a judgment for plaintiff, defendant appeals.

Affirmed conditionally.

See, also, Ex parte Smith, 228 Ala. 232, 153 So. 152. [163 So. 612]

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

Taylor & Higgins and Chas. W. Greer, all of Birmingham, for appellee.

BOULDIN, Justice.

Action against a city for personal injuries resulting from negligence in maintaining a public sidewalk.

Amended count 2, on which the cause was tried, alleged that plaintiff was walking on and along the sidewalk, part of a public highway in the city.

This was the use for which sidewalks are made, and discloses a duty of the city to maintain same in a reasonably safe condition for the use of pedestrians.

The count then charges that while plaintiff was walking on and along the sidewalk at a designated point, "she fell into a hole, depression or excavation in said sidewalk, which hole, depression or excavation was without guards or other lights or warning signals of the presence of said hole, depression or excavation and that as a proximate consequence thereof the plaintiff was caused to suffer and sustain all of the injuries and damages set forth and described in count 1 of her complaint. And plaintiff avers that all of her said injuries and damages were caused as a proximate result of the negligence of the defendant in and about causing or permitting said hole, depression or excavation to be and remain in said sidewalk at the time and place aforesaid."

While this count does not expressly aver a "defect" or "dangerous condition," the facts averred reasonably import the same thing. A "hole, depression or excavation" such as a pedestrian may and does fall into and receive the severe injuries alleged, and left without guards or warning signals is, prima facie, a dangerous defect.

A count which alleges facts from which negligence may be reasonably inferred, followed by averments of negligence, whereby the plaintiff assumes the burden to prove negligence in the particular case, is sufficient. Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443; Birmingham Railway, Light & Power Co. v. Weathers, 164 Ala. 23, 51 So. 303; Birmingham Railway, Light & Power Co. v. Parker, 156 Ala. 251, 47 So. 138; [163 So. 613] Birmingham Railway, Light & Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann.Cas.1916A, 543; Garing v. Boynton et al., 224 Ala. 22, 138 So. 279; Cook v. Sheffield Co., 206 Ala. 625, 91 So. 473.

A general averment of "negligence in permitting same to be and remain" in the sidewalk is a sufficient averment that such condition was known, or, in the exercise of reasonable care, would have been known, to the city authorities. Lord v. City of Mobile, 113 Ala. 360, 21 So. 366; City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48; City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; City of Albany v. Black, 216 Ala. 4, 112 So. 433.

Demurrer to this count was overruled without...

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13 practice notes
  • City of Birmingham v. Young, 6 Div. 250.
    • United States
    • Supreme Court of Alabama
    • May 10, 1945
    ...whereby the plaintiff assumes the burden to prove negligence in the particular case, is sufficient. City of Birmingham v. Smith, 231 Ala. 95, 163 So. 611, and cases cited. And a general averment that 'all of her said injuries were proximately caused by the negligence of defendant in neglige......
  • Alabama Power Co. v. Guy
    • United States
    • Supreme Court of Alabama
    • November 9, 1967
    ...pressure. As to any technical deficiencies in this or the other two counts, we cite the following from City of Birmingham v. Smith, 231 Ala. 95, 163 So. 'A count which alleges facts from which negligence may be reasonably inferred, followed by averments of negligence, whereby the plaintiff ......
  • Alabama Power Co. v. King, Nos. 6
    • United States
    • Supreme Court of Alabama
    • June 2, 1966
    ...Co. v. Smith, 171 Ala. 251, 55 So. 170; Stokely-Van Camp Inc. v. Ferguson, 271 Ala. 120, 122 So.2d 356, and City of Birmingham v. Smith, 231 Ala. 95, 163 So. Tennessee Coal, Iron & R.R. Co. v. Smith, supra, involved an action by a servant against a master based solely upon negligence. The o......
  • Alabama Gas Co. v. Jones, 6 Div. 120.
    • United States
    • Supreme Court of Alabama
    • June 5, 1943
    ...Power Co. v. Goodwin, 214 Ala. 15, 106 So. 239; Alabama Power Co. v. Talmadge, 207 Ala. 86, 93 So. 548; City of Birmingham v. Smith, 231 Ala. 95, 163 So. 611; Code 1940, T. 7, § 811. This court is of opinion that the verdict is excessive and the court erred in overruling this ground of the ......
  • Request a trial to view additional results
13 cases
  • City of Birmingham v. Young, 6 Div. 250.
    • United States
    • Supreme Court of Alabama
    • May 10, 1945
    ...whereby the plaintiff assumes the burden to prove negligence in the particular case, is sufficient. City of Birmingham v. Smith, 231 Ala. 95, 163 So. 611, and cases cited. And a general averment that 'all of her said injuries were proximately caused by the negligence of defendant in neglige......
  • Alabama Power Co. v. Guy
    • United States
    • Supreme Court of Alabama
    • November 9, 1967
    ...pressure. As to any technical deficiencies in this or the other two counts, we cite the following from City of Birmingham v. Smith, 231 Ala. 95, 163 So. 'A count which alleges facts from which negligence may be reasonably inferred, followed by averments of negligence, whereby the plaintiff ......
  • Alabama Power Co. v. King, Nos. 6
    • United States
    • Supreme Court of Alabama
    • June 2, 1966
    ...Co. v. Smith, 171 Ala. 251, 55 So. 170; Stokely-Van Camp Inc. v. Ferguson, 271 Ala. 120, 122 So.2d 356, and City of Birmingham v. Smith, 231 Ala. 95, 163 So. Tennessee Coal, Iron & R.R. Co. v. Smith, supra, involved an action by a servant against a master based solely upon negligence. The o......
  • Alabama Gas Co. v. Jones, 6 Div. 120.
    • United States
    • Supreme Court of Alabama
    • June 5, 1943
    ...Power Co. v. Goodwin, 214 Ala. 15, 106 So. 239; Alabama Power Co. v. Talmadge, 207 Ala. 86, 93 So. 548; City of Birmingham v. Smith, 231 Ala. 95, 163 So. 611; Code 1940, T. 7, § 811. This court is of opinion that the verdict is excessive and the court erred in overruling this ground of the ......
  • Request a trial to view additional results

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