City of Montgomery v. Ross, 203

CourtAlabama Supreme Court
Writing for the CourtMAYFIELD, J.
Citation70 So. 634,195 Ala. 362
Decision Date20 January 1916
Docket Number203
PartiesCITY OF MONTGOMERY v. ROSS.

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. [70 So. 635]

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.: [70 So. 636] "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...

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24 practice notes
  • Morgan Hill Paving Co. v. Fonville, 6 Div. 17
    • United States
    • Supreme Court of Alabama
    • 6 Diciembre 1928
    ...we have indicated, in Thomas v. Saulsbury, 212 Ala. 245, 102 So. 115. And it follows that the decisions cited ( Montgomery City v. Ross, 195 Ala. 362, 70 So. 634; Lee County v. Yarbrough, 85 Ala. 590, 5 So. 341; Brown v. Shelby County, 204 Ala. 252, 85 So. 416; Phillips v. Tuscaloosa County......
  • Foster & Creighton Co. v. St. Paul Mercury Indem. Co., 6 Div. 567
    • United States
    • Supreme Court of Alabama
    • 30 Junio 1956
    ...of want of due care. 20 R.C.L. 111; [City of] Birmingham v. Gordon, 167 Ala. 334, 52 So. 430; [City of] Montgomery v. Ross, supra.' [195 Ala. 362, 70 So. See Byars v. Alabama Power Co., 233 Ala. 533, 172 So. 621; Pankey v. City of Mobile, 250 Ala. 566, 35 So.2d 497. There is no evidence tha......
  • Walker County v. Davis, 6 Div. 510.
    • United States
    • Supreme Court of Alabama
    • 27 Marzo 1930
    ...to watch out for defects. Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; Vance v. Morgan, 198 Ala. 149, 73 So. 406; Montgomery v. Ross, 195 Ala. 362, 70 So. 634. There is therefore no duty to observe care in respect to defects until there is notice of the defect express or implied. In this......
  • City of Birmingham v. Latham, 6 Div. 636
    • United States
    • Supreme Court of Alabama
    • 20 Junio 1935
    ...conformity to the city ordinance would not relieve the city of responsibility for such negligent maintenance. City of Montgomery v. Ross, 195 Ala. 362, 70 So. 634. The jury could reasonably infer that the height of only 8 feet above the surface of the street required some warning signal to ......
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24 cases
  • Morgan Hill Paving Co. v. Fonville, 6 Div. 17
    • United States
    • Supreme Court of Alabama
    • 6 Diciembre 1928
    ...we have indicated, in Thomas v. Saulsbury, 212 Ala. 245, 102 So. 115. And it follows that the decisions cited ( Montgomery City v. Ross, 195 Ala. 362, 70 So. 634; Lee County v. Yarbrough, 85 Ala. 590, 5 So. 341; Brown v. Shelby County, 204 Ala. 252, 85 So. 416; Phillips v. Tuscaloosa County......
  • Foster & Creighton Co. v. St. Paul Mercury Indem. Co., 6 Div. 567
    • United States
    • Supreme Court of Alabama
    • 30 Junio 1956
    ...of want of due care. 20 R.C.L. 111; [City of] Birmingham v. Gordon, 167 Ala. 334, 52 So. 430; [City of] Montgomery v. Ross, supra.' [195 Ala. 362, 70 So. See Byars v. Alabama Power Co., 233 Ala. 533, 172 So. 621; Pankey v. City of Mobile, 250 Ala. 566, 35 So.2d 497. There is no evidence tha......
  • Walker County v. Davis, 6 Div. 510.
    • United States
    • Supreme Court of Alabama
    • 27 Marzo 1930
    ...to watch out for defects. Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; Vance v. Morgan, 198 Ala. 149, 73 So. 406; Montgomery v. Ross, 195 Ala. 362, 70 So. 634. There is therefore no duty to observe care in respect to defects until there is notice of the defect express or implied. In this......
  • City of Birmingham v. Latham, 6 Div. 636
    • United States
    • Supreme Court of Alabama
    • 20 Junio 1935
    ...conformity to the city ordinance would not relieve the city of responsibility for such negligent maintenance. City of Montgomery v. Ross, 195 Ala. 362, 70 So. 634. The jury could reasonably infer that the height of only 8 feet above the surface of the street required some warning signal to ......
  • Request a trial to view additional results

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