City of Mobile v. Shaw

• Decision Date: 14 February 1907
• Citation: 43 So. 94,149 Ala. 599
• Parties: CITY OF MOBILE v. SHAW.
• Court: Alabama Supreme Court

43 So. 94

149 Ala. 599

CITY OF MOBILE v. SHAW.

Supreme Court of Alabama

February 14, 1907

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Florence C. Shaw against the city of Mobile. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action begun by the appellee for damages resulting from falling into a hole on a sidewalk, or near the sidewalk of the appellant. The negligence alleged is the failure to have that part of the street sufficiently lighted, and for failure to repair the defect, which had been known to exist for some time. Proof of presentation of claim duly verified by affidavit was made. The facts on which the action is based and the defense thereto are sufficiently stated in the opinion.

Charge 5, given at the request of the plaintiff, is as follows "(5) The court charges the jury that, although they may believe the plaintiff knew of the defects in the sidewalk that constitutes no legal reason why she should not use the sidewalk, and as a citizen she had the legal right to use said sidewalk, notwithstanding the defects, and such use of the sidewalk, in case of injury, would not, unless she was negligent in the manner of traveling thereon, affect her right to recover full damages."

There was verdict for the plaintiff in the sum of $879.

B. B Boone, for appellant.

Charles L. Bromberg, for appellee.

HARALSON J.

The city charter of Mobile imposes upon the municipality the duty of repairing and keeping in order the streets of the city and their proper lighting at night. Acts 1900-01, p. 2342.

It was the duty of the municipal corporation to keep the streets and sidewalks in a reasonably safe condition for travel, and for the use of its citizens and the public generally; and this duty extended to the entire width of the streets and sidewalks appropriated to such use and purposes. Mayor and Aldermen v. Tayloe, 105 Ala. 176, 16 So. 576; Lord v. City of Mobile, 113 Ala. 360, 21 So. 366.

In town of Cullman v. McMinn, 109 Ala. 615, 19 So. 981, it was said: "The liability of municipal corporations for injuries to persons lawfully using the streets, caused by defects or obstructions therein, springs from the duty, imposed upon them by law, to keep the streets in a safe condition for public use. It is said by Judge Dillon: 'Where the duty to keep its streets in safe condition rests upon the corporation, it is liable for injuries caused by its neglect or omission to keep the streets in repair, as well as those caused by defects occasioned by the wrongful acts of others, but, as the basis of the action of negligence, notice to the corporation of the defect which caused the injury, or the facts from which notice thereof may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to the liability.' 2 Dillon, Mun. Cor. (4th Ed.) § 1034; City Council v. Wright, 72 Ala. 411, 47 Am. Rep. 422."

In Town of Gosport v. Evans, 112 Ind. 138, 13 N.E. 256 2 Am. St. Rep. 164, it was well said, consonant with our own decisions on the subject: "We do not question the doctrine of the cases which hold that because one has knowledge that a highway or sidewalk is out of repair, or even dangerous, he is not therefore bound to forego travel upon such highway or sidewalk. [ Citing cases.] The doctrine to be extracted from these cases is, that although a sidewalk or highway may be in an apparently defective or dangerous condition, yet a person with knowledge of the defect or danger is not on that account obliged to abandon travel upon the highway, if, by the exercise of care proportioned to the known danger, he may reasonably expect to shun or avoid the defect. If the defect be one which does not render the way wholly irreparable, and which can only result injuriously to the traveler if not shunned, if there be an apparently safe way of passage without going into the obvious defect, the traveler is not to be held to a rigorous account, if he is deceived or misled notwithstanding his effort to avoid the...