Hill v. Reaves

• Decision Date: 21 January 1932
• Docket Number: 1 Div. 665.
• Citation: 224 Ala. 205,139 So. 263
• Parties: HILL v. REAVES ET AL.
• Court: Alabama Supreme Court

139 So. 263

224 Ala. 205

HILL v. REAVES ET AL.

1 Div. 665.

Supreme Court of Alabama

January 21, 1932

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Action for damages for personal injuries by Thomas E. Hill, a minor suing by his next friend, A. C. Hill, against J. U. Reaves and the City of Mobile. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Lyons Chamberlain & Courtney, of Mobile, for appellant.

Inge Stallworth & Inge and Harry Seale, all of Mobile, for appellees.

BROWN J.

The first count of the complaint, as last amended, alleges tat the plaintiff, while riding a bicycle along the sidewalk on the north side of Government street in front of the residence of the defendant Reeves, in the city of Mobile, at night suddenly ran into a plant known as "the Spanish Dagger," growing on the property of the defendant Reaves, which was leaning entirely across the paved portion of the sidewalk in such sort as it was impossible for a pedestrian to pass thereunder, without running into the said plant, and thereby and as a proximate result thereof he suffered the partial loss of the sight in one of his eyes; that said injury resulted proximately from the negligence of the city of Mobile's failure to remedy the defect, and the negligence of Reaves "in allowing said plant to project over the sidewalk in such position as to partially or entirely obstruct the passageway, and in allowing said plant to remain so in an unguarded condition," as a result of which said sidewalk was not in a reasonably safe condition.

There were other averments designed to charge the defendants with notice or knowledge of the condition of the plant, and the demurrers take the point that these were not sufficient, but the view we take of the case renders these unimportant.

The demurrers which take the point that the averments of the complaint show that, when plaintiff received his injury, he was wrongfully riding a bicycle on the sidewalk, and therefore he does not bring himself within a class to whom the defendant owed a duty to see that the sidewalk was maintained in a reasonably safe condition, or was not obstructed, were sustained, and the plaintiff suffered a nonsuit and has appealed.

It is familiar law that to constitute actionable negligence there must be a duty to the person injured, or to a class of persons to which the plaintiff belonged, and a breach of the duty, proximately resulting in the injury. Tennessee Coal, Iron & R. R. Co. v. Smith, 171 Ala. 251, 55 So. 170; Southern Railway Co. v. Williams, 143 Ala. 217, 38 So. 1013, 1014; Sloss-Sheffield Steel & Iron Co. v. Hubbard, 14 Ala. App. 139, 68 So. 571.

It is not enough that the defendant owes a duty to same other person or persons, if the duty does not run to the plaintiff. Tennessee Coal, Iron & R. R. Co. v. Smith, supra.

It is also well settled that the proper place for the operation of all vehicles designed for speed or draft is in the speedway of the street, and not upon the sidewalk, which is set apart for the use of pedestrians, vehicles for cripples, invalids and baby buggies, propelled by a pedestrian; that a bicycle is a "vehicle" designed for speed, and its proper place is upon the highway or street proper. Fielder v. Tipton, 149 Ala. 608, 42 So. 985, 8 L. R. A. (N. S.) ...