City of Montgomery v. Ross

• Decision Date: 20 January 1916
• Docket Number: 203
• Citation: 70 So. 634,195 Ala. 362
• Parties: CITY OF MONTGOMERY v. ROSS.
• Court: Alabama Supreme Court

70 So. 634

195 Ala. 362

CITY OF MONTGOMERY v. ROSS.

No. 203

Supreme Court of Alabama

January 20, 1916

Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.

Action by Lula M. Ross against the City of Montgomery for damages occasioned by a defective sidewalk. Judgment for plaintiff and defendant appeals. Affirmed.

Warren E. Andrews, of Montgomery, for appellant.

Hill Hill, Whiting & Stern, of Montgomery, for appellee.

MAYFIELD J.

Appellee sued appellant to recover damages for personal injuries alleged to have been received on account of a defect in the sidewalk at the junction of Buford street and Highland avenue, in the city of Montgomery. The defect, if any, was a sudden and abrupt change in the grade of the sidewalk of about ten inches. Appellee, while walking along the sidewalk at this point, stepped off this sudden drop, and fell receiving in consequence thereof personal injuries, for which she sues.

It is contended: First, that the city is not liable as for defects in its streets and sidewalks; second, that this sudden change of grade, or step-down, of ten inches, is not a defect in the sidewalk for which the city is liable, if liable for any defects; and, third, that plaintiff was guilty of contributory negligence, which proximately contributed to her injury, in failing to observe the step-down before stepping over it. The first of these questions is purely one of law, while the second and third are usually, under the facts shown by this record, questions of fact for the determination of the jury, and the trial court properly submitted them to the jury for their findings. The city was therefore not entitled to affirmative instructions as to either of these two questions.

The rule is now, and has been always, different in this state, touching the liability of counties and the liability of cities as for defective highways. Counties are liable as for such defects only when and to the extent that they are made so by statute; while cities or towns are liable as for such defects when not expressly made so by statute. The power and authority which the county exercises in reference to roads and bridges, in its character and nature, is governmental, rather than corporate; and upon principles of the common law a county cannot be made answerable to private individuals for injuries resulting from the failure to exercise the power in the manner most conducive to the public safety. In this respect counties are distinguished from towns, cities, and other municipal corporations charged with the duty of keeping streets and other highways in safe and suitable condition for passage. Covington Co. v. Kinney, 45 Ala. 176; Barbour Co. v. Horn, 48 Ala. 566; Id., 48 Ala. 649; Sims v. Butler Co., 49 Ala. 110; Askew v. Hale Co., 54 Ala. 639, 25 Am.Rep. 730; 2 Mayf.Dig. 921.

In the case of Town of Cullman v. McMinn, 109 Ala. 614, 19 So. 981, it is said, per Brickell, C.J.: "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 is negligence, notice to the corporation of the defect which caused the injury, or of 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 Dill.Mun.Corp. (4th Ed.) § 1034; City Council v. Wright, 72 Ala. 411 ."

In Starr's Case, 112 Ala. 98, 20 So. 424, a case very similar to the one in hand, it was said:

"It may be that courts have judicial knowledge that every slight elevation or depression in the streets or sidewalks of a city are such imperfections as not to be dangerous to persons exercising ordinary care, as held in the case of Raymond v. City of Lowell, 6 Cush. (60 Mass.) 524, 53 Am.Dec. 57; but the defects described in the complaint, with the averments of injury sustained, prima facie show an actionable defect. Much depends upon the circumstances and conditions whether a defect is actionable, which can be shown only by evidence, but which circumstances and conditions need not be detailed in the complaint.

"The fourth ground of demurrer raises the question of the liability of the city under its charter for failing to keep in good repair its streets and sidewalks after notice. The complaint must be construed as if it contained at length the provisions of the charter which impose the duty upon the city, and, considered in this view, the question is properly raised by demurrer. Albrittin v. Mayor and Aldermen of Huntsville, 60 Ala. 494 ; Smoot v. Wetumpka, 24 Ala. 121."

In Starr's Case the depression was only three inches in depth, while here it is ten; but in Starr's Case the depression was not due to wear, but was structural, and so intentional, though this fact would not relieve the city of liability, provided it were actionable negligence to so construct the sidewalk. And, as before said, this question of negligence was one of fact for the jury in the case at bar. Starr's Case, 112 Ala. 98, 20 So. 424, Tayloe's Case, 105 Ala. 170, 16 So. 576, and Wright's Case, 72 Ala. 411, 47 Am.Rep. 422, are conclusive to the proposition that whether or not plaintiff was guilty of contributory negligence in stepping off the depression without observing it was a question of fact for the jury.

The rule as to contributory...