Ivey v. City of Birmingham

• Decision Date: 07 November 1914
• Docket Number: 756
• Parties: IVEY v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

67 So. 506

190 Ala. 196

IVEY v. CITY OF BIRMINGHAM.

No. 756

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Action by John B. Ivey against the City of Birmingham for damages suffered by reason of a ditch being left open and unguarded. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Charge 1, refused to plaintiff, is as follows;

A city, by bringing a highway within its corporate limits and leaving it open for public travel, becomes bound to use ordinary care to maintain it in a reasonably safe condition for such travel.

The following is charge 20, given for defendant:

Even though you believe from the evidence that the city passed an ordinance providing for the construction of certain street improvements, to wit, sidewalk, curb, and gutter grading and macadamizing that part of Thirty-Fourth street from Clairmont avenue, to Willow avenue, and that the city let a contract and constructed such improvement between said point, and for 100 feet north of Willow avenue graded or smoothed off Thirty-Fourth street, and even though you further believe that the city assessed the cost of making such improvement against the abutting property owners, this without more would not constitute an acceptance of that part of Thirty-Fourth street lying between the Georgia Road and Hill avenue, and would cast no duty upon the city to repair or keep in repair that part of Thirty-Fourth street north of Hill avenue.

The following is the abstract of the evidence offered:

Plaintiff introduced evidence in said cause on the trial thereof tending to show that on the 5th day of October, 1912, after night, he disembarked from a street car at the corner of Thirty-Fourth street and avenue F, which street car at that point ran along Avenue F, sometimes called Georgia Road, and that plaintiff's destination was the residence of a family living on the west side of Thirty-Fourth street in the block next south of Avenue F; the avenues in said city according to its regular plan, being named by the name of the letters of the alphabet, beginning with A, and running south consecutively to and beyond the letter G; that said Thirty-Fourth street, according to the plan of said city of Birmingham, crossed the whole of said city from north to south, and that the crossing of said Thirty-Fourth street and Avenue F was open to vehicles at the time of said accident though it was rough; that from the said street car on Avenue F plaintiff started south along the west side of Thirty-Fourth street on a path or sidewalk regularly used by pedestrians; that he inquired of the people living in the house on the corner of said Avenue F and Thirty-Fourth street as to the residence of the family whose residence he was seeking, and was told that they lived a few doors south whereupon plaintiff continued walking up the west sidewalk or path in said Thirty-Fourth street, being the western edge thereof, and while so walking in the dark, the said street not being lighted up at all, he fell into a deep ditch, which he did not know existed, he having never been in that neighborhood before, and in consequence of the fall received the injuries and damages set out in the complaint. The ditch was from 7 to 15 feet deep and from 4 to 5 feet wide, and ran parallel to and about 4 feet from the western property line on the western margin of said Thirty-Fourth street and adjoining or within a few inches of the eastern margin of said path or sidewalk. The point where plaintiff fell into said ditch was about 25 feet southward from the south line of Avenue F, and between Avenue F and Avenue G as extended, but Avenue G, though cut through on both sides of that block, was not cut through or extended through that block.

Some 23 years before plaintiff was injured on the occasion complained of George C. Arrington, whom the evidence tended to show was then owner of the property including said block, had said property surveyed, mapped, and plotted, and had filed said map for record in the office of probate judge of Jefferson county, marking the streets, avenues, and alleys thereon including said Thirty-Fourth street, from said Avenue F southward through said block and beyond, and had had said plot and map legally recorded after having acknowledged the same, and had the surveyor's certificate, as required by law, put upon same; said map having been filed as aforesaid 23 years before said accident. From that time to the time of said accident said Thirty-Fourth street through said block had been used by the public at all times, by pedestrians and wagons, and as automobiles came into use by automobiles; but the traffic thereon was very limited in number. There was evidence tending to show that Thirty-Fourth street, from Hill avenue, to avenue F, was impassable, and that vehicles could not go up and down; that at the time of said dedication the said plot was not in the city of Birmingham, but was contiguous thereto, but long before, to wit, two years before, said accident the city of Birmingham extended its corporate limits, so that same included said plot including said Thirty-Fourth street in said block; that said ditch existed to the depth of several feet in said Thirty-Fourth street at the time of the extension of said corporate limits so as to include said Thirty-Fourth street therein, but that it was at said time not nearly so deep, but gradually from the washing of rains got deeper and deeper; that said ditch was not, on the occasion of said injury, or had not been at any time, lighted or guarded; that vehicles used as a driveway that part of said Thirty-Fourth street in said block between the said ditch and the eastern edge of said Thirty-Fourth street; that on the western side of said Thirty-Fourth street, facing said street and facing east, there were nine residences in said block, all the lots being built upon; that on the eastern side of said street, facing west, there were but two; that all of these houses, but one, had been built and used as residences for many years, and for several years before the corporate limits were extended to include them, which was done, as stated, about two years prior to said accident; that the grade of said Thirty-Fourth street, going south from said Avenue F towards where Avenue G, if extended, would cross, was quite steep; that about 100 feet from said Avenue F, a (comparatively narrow) street called Hill avenue ran into said Thirty-Fourth street from the west at an oblique angle, but did not cross, and that on the east, about 110 feet from said Avenue F, an alley at right angles to said Thirty-Fourth street ran into said Thirty-Fourth street in said block, but did not cross same; that Willow avenue ran into said Thirty-Fourth street from the west (but did not cross) at a point the equivalent of about two blocks south of said Avenue F, and that no other streets or alleys were actually cut into said Thirty-Fourth street from said Avenue F south to said Willow avenue; that said Thirty-Fourth street ran down the south side of the hill to Clairmont avenue, along which was another street car line, being the Mountain Terrace line, which was about three blocks south of the Avondale car line, which last-named car line was the one hereinbefore mentioned running along...