City of Tallassee v. Harris

• Decision Date: 01 April 1983
• Citation: 431 So.2d 1177
• Parties: CITY OF TALLASSEE v. Karen Michelle HARRIS, etc., et al. Frank HARRIS v. CITY OF TALLASSEE. 81-833, 81-881.
• Court: Alabama Supreme Court

Page 1177

431 So.2d 1177

CITY OF TALLASSEE v. Karen Michelle HARRIS, etc., et al.

Frank HARRIS v. CITY OF TALLASSEE.

81-833, 81-881.

Supreme Court of Alabama.

April 1, 1983.

Rehearing Denied May 20, 1983.

Richard A. Ball, Jr., of Ball, Ball, Duke & Matthews, Montgomery, and Willard Pienezza, Tallassee, for City of Tallassee.

Ernest C. Hornsby of Hornsby & Schmitt, Tallassee, and Mays Jemison, Montgomery, for appellant Frank Harris.

Ernest C. Hornsby of Hornsby & Schmitt, Tallassee, Mays Jemison, Montgomery, Linda Benson, East Tallassee, for appellees Karen Michelle Harris, et al.

MADDOX, Justice.

The issues in these consolidated appeals are: whether the trial court erred in refusing to give certain instructions as requested by defendant City of Tallassee concerning its liability for the condition of an alley inside its city limits where the collision occurred; whether the evidence was sufficient as a matter of law for the jury to conclude the alley was a public way and that the defendant city was negligent in not making the alley reasonably safe for public travel; whether the amount of damages awarded one of the plaintiffs was excessive; and whether a new trial should have been granted to cross-appellant because of inconsistent verdicts.

On January 10, 1981, a head-on collision occurred on Alber Alley located in the city limits of Tallassee, between a vehicle owned and operated by Hazel Hammock (plaintiff/appellee) and a vehicle operated by Karen Michelle Harris (plaintiff/appellee). The vehicle being operated by Michelle Harris was owned by her father, Frank Harris (plaintiff/cross-appellant). Both Hazel Hammock and Michelle Harris sustained injuries as a result of the accident.

Michelle Harris, as a minor, brought suit against the City of Tallassee by and through her mother, legal custodian and best friend, Joyce P. Harris. Michelle's father, Frank Harris, who was divorced from Joyce Harris, was a plaintiff also. In the complaint, Michelle Harris claimed damages for bodily injuries as well as pain and suffering proximately resulting from the city's negligence or wantonness with regard to the unsafe condition of Alber Alley for public travel. Frank Harris claimed damages for doctor, medical and drug bills incurred in the treatment of Michelle. He also claimed property damages for the automobile that he owned, which was being operated by his daughter at the time of the accident. Hazel Hammock likewise brought suit against the city on the grounds of negligence or wantonness. Both cases were later consolidated for trial on motion by the city.

At trial, Michelle Harris testified that at the time the accident occurred, she had shifted from third to second gear to pull the steep hill on Alber Alley and was travelling between ten and twenty miles per hour. She testified that she never saw the other car before colliding with it. Terri Chandler, who was a passenger in the car being driven by Michelle Harris, testified she saw the car only briefly before the collision. Hazel Hammock, who was travelling from the opposite direction on Alber Alley when the two cars struck, testified that she never saw the car Michelle Harris was driving before the two collided. She estimated she was travelling from fifteen to twenty miles per hour on the uphill climb. The accident occurred at the crest of the hill on Alber Alley.

A number of witnesses testified to the public's use of the alley and it was uncontroverted at the trial that the public used the alley for travel in both directions. Residents whose houses bordered the alley testified that prior to the accident, they had seen traffic on the alley, including school buses, police cars, trash trucks, and power company trucks, in addition to private cars.

Lamar Woodham, Jr., a registered professional engineer, appeared on behalf of the plaintiffs. Woodham inspected the accident scene and conducted measurements, studies and experiments. He testified that because the width of Alber Alley was from nine and one-half feet to eleven feet, it was totally inadequate to handle two-way vehicular traffic. He stated that the standards for minimum roadway width required for cars travelling in opposite directions in 1952, ¹ as set forth by the American Association of Highway Officials, was twenty to twenty-two feet.

Woodham testified that in order to correct the problem, sound engineering practice would require either adjustment of the geometrics of the road or adequate signing to take care of the geometrics of the road.

Woodham further testified that the hill on Alber Alley did not meet the minimum standard of sound and accepted traffic engineering practices regarding minimum safe-stopping sight distances at the time of the accident and that this condition had existed as far back as 1952. Woodham stated that if the city had used the Alabama Manual on Traffic Control Devices, it could have corrected the roadway's deficiencies by making the alley one way, and putting up a stop sign on the connector street. He testified that in his opinion, because of the grade of the hill, it was impossible for the driver of either car to have stopped her car without colliding head-on with the other car coming from the opposite direction.

Officer Billy Clayton, a sergeant with the Tallassee Police Department and life-long resident of the city (he was 40 years old at the time of the trial), investigated the accident. He testified that the two vehicles were travelling in opposite directions and estimated their speed on the uphill grade at twenty miles per hour. Although no signs were posted on the alley to regulate speed, the sergeant acknowledged that the general speed limit for the city was thirty miles per hour. He stated that he did not know which of the two parties had the right-of-way at the crest of the hill and testified that he did not find that either party had violated any traffic ordinances. Sergeant Clayton further testified that, in his opinion, the alley was too narrow for two-way traffic, and that the safe-stopping sight distance on the hill was inadequate; he did not recall ever seeing or hearing of a prior wreck on the alley, however.

The jury returned a verdict in favor of Hazel Hammock in the amount of $15,000. The jury also returned a verdict in favor of Michelle Harris in the amount of $40,000, but found against Frank Harris on his claim for medical expenses and property damages.

Frank Harris filed a motion for new trial, and the city filed its motion for judgment N.O.V. or in the alternative for a new trial as to the judgment entered on the jury verdicts in favor of Michelle Harris and Hazel Hammock. The trial court denied Frank Harris's motion for a new trial and the city's motion for judgment N.O.V. Frank Harris and the city appealed.

I

The City of Tallassee states succinctly in its brief the legal principle it contends is controlling:

"[A] city has the inherent authority to determine whether a way will be a street or an alley, whether it will undertake to make it one-way, place signs on it, or otherwise regulate traffic on it and until it acts in its governmental capacity, it cannot be held liable for not exercising that same governmental discretion."

This Court, however, has defined a city's responsibility with respect to the maintenance of its streets as follows:

"In general terms, the liability of a municipality in a suit of this kind is governed by the duty and obligation to exercise ordinary and reasonable care to keep its streets and sidewalks in a reasonably safe condition for travel. This imposition does not make the municipality a guarantor of the safe and unharmed travel to the public. The duty is based on the responsibility and accountability of the city to remedy such defects upon receiving actual notice, or after the same has remained for such length of time and under such conditions and circumstances that the law will infer that the defect ought to have been discovered and remedied. § 502, Title 37, Code 1940; City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542; City of Birmingham v. Martin, 228 Ala. 318, 153 So. 235; City of Montgomery v. Ross, 195 Ala. 362, 70 So. 634; City of Birmingham v. Coe, 31 Ala.App. 538, 20 So.2d 110, certiorari denied 246 Ala. 231, 20 So.2d 113."

Jacks v. City of Birmingham, 268 Ala. 138, 142-143, 105 So.2d 121, 125-126 (1958). This "duty and obligation to exercise ordinary and reasonable care" and the corresponding liability to fulfill the duty apply to a municipality's care of its alleys. Code 1975, § 11-47-190. ² We have held "that the duty imposed on cities to keep their public ways free of defects is but the expression of a broader responsibility to exercise ordinary and reasonable care in keeping streets in a reasonably safe condition for travel." City of Prichard v. Kelley, 386 So.2d 403, 405 (Ala.1980). As this relates to alleys, cities have a duty to exercise reasonable care to keep alleys in a reasonably safe condition for travel, not a duty to maintain alleys in a reasonably safe condition. McQuillin, 19 Municipal Corporations § 54.40 (1967).

The city asserts that the trial court erred in not entering a directed verdict, and likewise in denying its motion for judgment N.O.V., or in the alternative for a new trial, because the evidence was insufficient to impose liability on the city. The standard of review for this Court with regard to a motion for new trial is amply set forth in Jacks v. City of Birmingham, supra:

"... Verdicts are presumed to be correct and no ground of a motion for new trial is more carefully scrutinized or more rigidly limited than that the verdict is against the evidence. And it has been recognized by this court that when the presiding judge refuses, as here, to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. Smith v. Smith, 254 Ala. 404, 48 So.2d 546; Mintz v. Millican, 206 Ala. 479, 97 So.2d 769. We cannot say that the trial court erred in...