City of Montgomery v. Quinn
Decision Date | 19 October 1944 |
Docket Number | 3 Div. 416. |
Citation | 19 So.2d 529,246 Ala. 154 |
Parties | CITY OF MONTGOMERY v. QUINN |
Court | Alabama Supreme Court |
Rehearing Denied Nov. 16, 1944.
Appeal from Circuit Court, Montgomery County; Walter B. jones judge.
Walter J. Knabe, of Montgomery, for appellant.
Hill Hill, Whiting & Rives, of Montgomery, for appellee.
Suit by a father for the death of his minor child caused by the falling of a rotten limb from a tree growing between the sidewalk and the curb stone.
The complaint, in two counts, was directed to the City of Montgomery and the owner of the adjacent property where the tree grew. Count one alleged that the city negligently caused or allowed a rotten limb hanging over the sidewalk to remain on the tree, and the limb fell, causing the injury of which complaint is made. Count two alleged that the rotten limb was a defect in the street, which the city failed to remedy after it had been called to its attention, or after that defect had existed for such an unreasonable time as to raise the presumption of knowledge of such defect on the part of the Board of Commissioners of said city.
Demurrer directed to each count was overruled by the trial court. Code 1940, Tit. 37, §§ 502, 503.
The question raised was that if there was the right of recovery on the facts averred, it should not be had against the city unless a sworn statement had been filed by the party injured or his personal representative in case of death, stating substantially the manner in which the injury was received the place where the accident occurred, and the damages claimed.
In Taylor v. City of Clanton, 245 Ala. 671, 18 So.2d 369, the right of such action by a parent for an injury to a minor child was considered. It was held that Code 1940, Tit. 37, § 504, may not be so construed as to deprive a parent of the claim or right under Code 1940, Tit. 7, § 119, because the party injured failed to file the claim therefor or his personal representative did not so file the claim. Here the parent filed the claim.
Questions presented on the trial are whether or not evidence may be introduced: (1) As to the condition of the tree and the action of the city in removing other dead limbs therefrom immediately after the accident; (2) As to the argument of counsel to the jury relative to such evidence, and whether or not it may be considered by the jury touching negligence. If such evidence is considered an act or admission of negligence, it is incompetent. If it is considered merely as evidence of the condition existing at the time of the injury, it is competent, if properly limited.
In II Wigmore on Evidence, Third Edition, pp. 151-159, the subject was considered under the title, "Taking Measures to Remedy Injury; Repairs of a Machine, Highway, or the like, after an Injury." The author says:
Many authorities are collected, including those from this jurisdiction, as follows: Louisville & N.R. Co. v. Malone, 109 Ala. 509, 518, 20 So. 33 ( ); Jackson Lbr. Co. v. Cunningham, 141 Ala. 206, 37 So. 445 ( ); Frierson v. Frazier, 142 Ala. 232, 37 So. 825 ( ); Davis v. Kornman, 141 Ala. 479, 37 So. 789 ( ); Central of Georgia R. Co. v. Grover, 218 Ala. 290, 118 So. 506 (repairs of a track at or about a quarter of a mile from place in question excluded as too remote or immaterial).
On the effect of such evidence, Mr. Wigmore continues:
"Since the condition of a place or thing at the time of an injury may always be evidence by showing its condition before or after that time, provided no substantial change has occurred, * * * the description of the condition of the place subsequent to the injury may necessarily involve a mention of the fact of repairs; but this use of the fact should be guarded against misuse for the forbidden purpose." [Italics supplied.]
The latest announcement in this jurisdiction is Norwood Clinic, Inc., v. Spann, 240 Ala. 427, 199 So. 840, 843, where it is observed:
The decision in Green v. Atlantic Coast Line R. Co., 136 S.C. 337, 134 S.E. 385, 386, contains an interesting discussion touching the duty of the trial judge as to the admission and the limitation of the effect of such evidence. It is there indicated:
Under the foregoing rule, no error was committed in the introduction of evidence, over defendant's objection, as to the immediate and subsequent removal of other rotten limbs from the instant tree by the city testified to by witnesses Hines, Barnes, Barton and Quinn. The evidence merely tended to show the condition of the tree and its limbs on Monday after the accident occurred on Friday afternoon. The trial judge did his duty in the premises in his general charge to the jury. He said:
To continue reading
Request your trial-
Parish v. Pitts
...Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651 (1950). (22) Injuries from overhanging tree limbs. City of Montgomery v. Quinn, 246 Ala. 154, 19 So.2d 529 (1944); Tate v. City of Greenville, 228 S.C. 530, 91 S.E.2d 161, 54 A.L.R.2d 1190 (23) Injuries because of an accumulation of water......
-
Louisville & Nashville Railroad Company v. Williams, 22771.
...think that the evidence of subsequent repairs and improvements was admissible under the theory employed in City of Montgomery v. Quinn, 1944, 246 Ala. 154, 19 So.2d 529, 531-533, that is, to show the condition existing at the time of the accident. We have found only one precedent as to the ......
-
State ex rel. Atty. Gen. v. Ward
...Tuskegee Light & Power Co., 232 Ala. 361, 168 So. 159; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841; City of Montgomery v. Quinn, 246 Ala. 154, 19 So.2d 529. 'It is without dispute in the evidence that the respondent city delayed for more than eleven years to assert its allege......
-
McLemore v. International Union, United Auto., Aircraft and Agr. Implement Workers of America, C.I.O., 8 Div. 814
...'The test, however, is not that the argument did unlawfully influence the verdict, but that it might have done so. City of Montgomery v. Quinn, 246 Ala. 154, 19 So.2d 529; Roan v. State, 225 Ala. 428, 143 So. Applying this test, as did the trial judge to the facts in the instant case, we ar......