City of Montgomery v. Quinn, 3 Div. 416.

CourtSupreme Court of Alabama
Citation19 So.2d 529,246 Ala. 154
Docket Number3 Div. 416.
Decision Date19 October 1944

19 So.2d 529

246 Ala. 154



3 Div. 416.

Supreme Court of Alabama

October 19, 1944

Rehearing Denied Nov. 16, 1944. [19 So.2d 530]

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.

[246 Ala. 155] THOMAS, Justice.

Suit by a father for the death of his minor child caused by the falling of a [246 Ala. 156] 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 [19 So.2d 531] 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:

"That argument is that the admission of such acts, even though theoretically not plainly improper, would be liable to overemphasis by the jury, and that it would discourage all owners, even those who had genuinely been careful from improving, the place or thing that had caused the injury, because they would fear the evidential use of such acts to their disadvantage; and thus not only would careful owners refrain from improvements, but even careless ones, who might have deserved to have the evidence adduced against them, would by refraining from improvements subject innocent persons to the risk of the recurrence of the injury.

"Whatever then might be the strength of the objection to such evidence from the point of view of Relevancy alone, the added considerations of Policy suffice to make clear the impropriety of resorting to it. On one or another or both of these grounds have most Courts rested their reasoning."

Many authorities are collected, including those from this jurisdiction, as follows: Louisville & N.R. Co. v. Malone, 109 Ala. 509, 518, 20 So. 33 (mere fact of repairs held inadmissible; but in determining the condition at the time of the injury or accident, the repairs may be considered and must be so limited); Jackson Lbr. Co. v. Cunningham, 141 Ala. 206, 37 So. 445 (defective roadbed; changes of tracktimbers, etc., admitted, to identify other timbers in the track at time of accident); Frierson v. Frazier, 142 Ala. 232, 37 So. 825 (ferry accident, subsequent placing of a rear guard admitted only on cross-examination of a defendant who had testified to that subject as it affected liability); Davis v. Kornman, 141 Ala. 479, 37 So. 789 (injury by a machine; protective construction since the injury excluded); 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 [246 Ala. 157] 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:

"With respect to the fact that after the accident, grooves were cut out across the walkway, and the assignments of error in that connection. No one here questions the principle that plaintiff cannot show initially that after the accident defendant did some act which was intended to make the location safer for such use. * * *

"But this is so only when such evidence is offered and intended to show thereby that the place was not reasonably safe before the alteration was made. It would be unjust to assume that because defendant used extreme care after the accident, that he should have done so before. * * *." [Italics supplied.]

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:

" 'Here the only question can be what are the proper means for avoiding the risk of misusing the evidence. It is uniformly conceded that the instruction of the court suffices for that purpose; and the better opinion is that the opponent of the evidence must ask for that instruction; otherwise he may be supposed to have waived it as unnecessary for his protection.' [Wig.Ev. (1st. Ed.) 42] * * *

"The plaintiff's case depended upon his establishing the fact that the limb extended over the caboose at the appropriate height to strike him. At the time of the trial the limb was not there; and, as the Chief Justice remarks in the case of Plunkett v. Clearwater Bleachery & Mfg. [19 So.2d 532]

Co., 80 S.C. 310, 61 S.E. 431, if the plaintiff be not allowed to prove the subsequent change in the situation, 'the case would be determined upon subsequent facts, and not upon those existing at the time of the injury.' Unquestionably if some one not connected with the railroad company had sawed the limb off, we apprehend that there would be no objection to the evidence. The fact that because the agent of the railroad had done it could not affect the admissibility of the evidence; it only imposed upon the trial judge the duty of giving to the jury the proper limiting instructions."

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:

"The Court has permitted some evidence to come before you tending to show that a short time after this accident and injury to the minor, the City authorities sent out there and trimmed up that tree, removing certain limbs that were claimed to have been decayed or rotten. The Court has permitted that testimony to come before you solely for one purpose, and that purpose is to show the condition of that tree at the time this alleged accident and injury took place, and it is not to be regarded by the jury as any admission on the part of the City that it was negligent in the way they handled this street, or in the way they looked after this sidewalk, because after the thing was all over they went out there and trimmed up that tree.

"A very able writer has this to say in regard to that rule: It has often been urged by counsel for the plaintiff that after an injury has occurred, the making of repairs of the taking of other precautions, or the discharge of the employee concerned, is to be taken as an admission by the party so doing it that there was some negligence or other culpable conduct on his part. The answers to these suggestions are two: First, that such conduct of the party--the city in this case--is equally open to the interpretation that the party, though he does not believe the place or thing culpably defective or dangerous, still wishes, in the light of what has occurred, to make it safe even beyond what the law requires of him; * * * and, secondly, to admit such evidence would be [246 Ala. 158] to discourage all endeavor to improve existing conditions, or it would put a penalty upon a conscientious person. * * *

"So this evidence the Court has permitted to come before you, that the City crew went out there a short while after the death of the child and trimmed up the tree there; is...

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    ...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 (1956). (23) Injuries because of an accumulation ......
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