City of Mobile v. Ryser

• Decision Date: 22 December 1927
• Docket Number: 1 Div. 457
• Parties: CITY OF MOBILE v. RYSER.
• Court: Alabama Supreme Court

114 So. 903

217 Ala. 92

CITY OF MOBILE v. RYSER.

1 Div. 457

Supreme Court of Alabama

December 22, 1927

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action for damages by Peter Ryser against the City of Mobile. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Frank J. Yerger, of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellee.

BOULDIN J.

The action is against a municipal corporation for personal injuries resulting from a defective sidewalk.

A plea of contributory negligence set up that at the time of the injury plaintiff "knew" of the defective place in the sidewalk, and was "injured through his own forgetfulness in failing to use due care," that such forgetfulness was the proximate cause of the injury.

The court, at plaintiff's request, gave an affirmative instruction eliminating this plea as an issue before the jury. This ruling is assigned as error.

The plea of contributory negligence is based on the rule announced in City of Birmingham v. Edwards, 201 Ala 251, 77 So. 841, in the following language:

"*** When the plaintiff knew of the defect in the sidewalk, then contributory negligence on her part in not remembering and avoiding the danger is to be presumed, in the absence of satisfactory excuse for forgetting. This rule merely places upon the pedestrian, after it appears that he well knew of the defective condition of the sidewalk, and its attending danger, the burden of offering testimony to excuse his forgetfulness or inattention."

This case discusses and cites authority as to what may be considered a sufficient excuse for forgetfulness or inattention. We are not now concerned with that question.

The question here is whether there was any evidence that the plaintiff knew of the defective condition of the sidewalk at the time.

The place was on the west side of St. Joseph street, between Lipscomb and Beauregard streets in the city of Mobile. Part of this sidewalk, the north end, was paved with brick. This brick pavement terminated before reaching Lipscomb street and a stretch of some ten or more feet of dirt walk intervened. The south end of the brick pavement was rather irregular, and exposed the full thickness of the brick above a portion of the dirt walk, and some wear of the dirt walk made a further depression, probably about the thickness of the brick, at the step up onto the brick pavement. Plaintiff...