Jacks v. City of Birmingham, 6 Div. 209

• Decision Date: 05 June 1958
• Docket Number: 6 Div. 209
• Parties: Katie JACKS v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

Page 121

105 So.2d 121

268 Ala. 138

Katie JACKS v. CITY OF BIRMINGHAM.

6 Div. 209.

Supreme Court of Alabama.

June 5, 1958.

Rehearing Denied Sept. 25, 1958.

The following charges were given at defendant's request:

'16. A city is not an insurer of the safety of the sidewalks, streets or alleys; the city is under no greater duty than to maintain the sidewalks, streets and alleys in a reasonably safe condition for travel.

'23. If you believe the evidence in this case then I charge you that you should not find that the rail or barrier was provided as a seat or resting place.

'24. If you are reasonably satisfied from the evidence that the plaintiff had reason to believe that a defect existed in the sidewalk upon which she was traveling, as claimed, and such belief on her part arose from facts known to her and sufficient to put a reasonably prudent person on notice as to such defect, if you so find from the evidence, then the law imposed on plaintiff the duty to avoid such defect.

'25. The Court charges the jury that a person walking upon a public sidewalk is under a duty to make reasonable use of the sense of sight and see what ordinary vision would disclose.

'26. I charge you that the City of Birmingham is not liable for all injuries proximately caused by defects in the streets and sidewalks, and before a person is entitled to recover, it must be shown that the City had actual notice or knowledge of the defect and failed to remedy the same, or that such defect had existed for such an unreasonable length of time that the City could have obtained notice or knowledge of the defect by the use of ordinary diligence.

'42. The Court charges you that the City of Birmingham was under a duty to exercise only ordinary or reasonable care in respect to the placing or maintaining of barriers or warnings at the place complained of, and if you are not reasonably satisfied from the evidence in the case that the City of Birmingham breached such duty, then I charge you that you should find in favor of the defendant.

'A. The Court charges you that the burden is upon the plaintiff in this case to reasonably satisfy you from the evidence that her alleged injuries were received in the manner as substantially set forth in the sworn statement filed with the City Clerk and if you are not so reasonably satisfied from the evidence in the case then I charge you it would be unnecessary for you to consider the alleged negligence on the part of the defendant and it would be your duty to return a verdict in favor of the defendant.'

Hal W. Howard and D. G. Ewing, Birmingham, for appellant.

Shannon & Conerly, Sam R. Shannon, Jr., Birmingham, for appellee.

LAWSON, Justice.

Mrs. Katie Jacks sued the City of Birmingham to recover damages for personal injuries which she sustained on the morning of November 27, 1953, as a result of a fall into a ditch operated and maintained by the city for the purpose of draining surface waters.

To the amended complaint charging it with negligence, the city pleaded the general issue and contributory negligence in short by consent.

There was jury verdict in favor of the defendant city. Judgment was in accord with the verdict. Her motion for new trial having been overruled, the plaintiff has appealed to this court.

83rd Street and Fifth Avenue, South, referred to hereafter only as Fifth Avenue, are intersecting streets in the City of Birmingham. 83rd Street runs north and south and Fifth Avenue runs east and west.

The ditch into which plaintiff fell is approximately eight feet deep and ten feet wide. It runs parallel to and near the eastern boundary of the traveled portion of 83rd Street from approximately the northern boundary of Fifth Avenue to the southern boundary of Fourth Avenue to the north. The western bank of the dtich is not over two feet from the eastern boundary of the traveled portion of 83rd Street and practically all, if not all, of the ditch is within the right of way of that street.

There is a sidewalk on the north side of Fifth Avenue which extends from the eastern curb line of 83rd Street on the west to the western curb line of 84th Street on the east. In her claim filed with the city, plaintiff averred that the paved part of the sidewalk was four feet in width. But one of plaintiff's witnesses testified that the paved sidewalk was eight feet wide. The open ditch begins at a point not over three feet north of the northern edge of the paved sidewalk on Fifth Avenue. It is not clear from the evidence as to whether any part of the open ditch is actually within the right of way of Fifth Avenue. Between the northern edge of the sidewalk on Fifth Avenue and the open ditch, the city had constructed what is sometimes referred to in the record as a guard rail and sometimes as a barrier. It was situated approximately equidistant between those two points. It consisted of one 2 X 6 plank, which was nailed or bolted to two posts situated about 12 feet apart. The plank was affixed to the posts at a point about two feet above the ground and ran approximately parallel to the sidewalk on Fifth Avenue. In answer to interrogatories propounded by the plaintiff, which interrogatories and answers were introduced in evidence by the plaintiff, the city stated that the guard rail was constructed 'to warn of the presence of the ditch as well as to indicate the bounds of the area open for public travel,' and that it was not intended as a support of persons and was not designed 'to keep people from getting into the ditch.'

On the day of the accident the plaintiff lived at 8418 Sixth Avenue, South, one block south and two or three blocks east of the intersection of 83rd Street and Fifth Avenue. She was familiar with the condition of that intersection and knew of the existence of the ditch, which she had seen over 'hundreds of times' as she walked in a westerly direction on the sidewalk on the north side of Fifth Avenue on her way to catch a bus at the northwest corner of the intersection. The ditch, as we have indicated, was near the northeast corner of the intersection where there was no bus stop.

According to the plaintiff, she fell into the ditch shortly after ten o'clock on the morning of November 27, 1953. One of her witnesses fixed the time of the fall as being in the afternoon, but the exact time is immaterial. Plaintiff had walked from her home carrying her seven-months-old grandchild and a bundle or package of baby clothes. She was accompanied by her nine-year-old grandson. She had planned to catch a south-bound bus at the northwest corner of the intersection of 83rd Street and Fifth Avenue. When she reached the northeast corner of the intersection at a point south of the open ditch, she stopped for traffic on 83rd Street.

The plaintiff was the only occurrence witness. Some of her testimony tends to show that the point where she stopped while she waited for the traffic was north of the sidewalk just a short distance south of the guard rail. Such is the location pointed out in the drawing which is in the record. In other parts of her testimony it appears that plaintiff was not certain as to whether she stopped on the northern edge of the sidewalk or between that point and the ditch. She faced north and placed her bundle or package on the ground. She remained there for several minutes holding the baby. Her testimony varies in respect to the length of time she remained at that point while she waited for traffic to pass. At one place she stated that she remained at that point not over three or four minutes, but later on in her testimony she said she was there between five and ten minutes before she fell. The plaintiff's testimony as to what actually caused her to fall is far from clear. She said that when she saw the bus coming down 83rd Street from the north, the direction she was facing, she reached for the package which she had placed on the ground and 'I raised back up, and when I did I came in contact and it broke with me and I fell in.' The object with which she came in contact was the guard rail, which the evidence tends to show was not in a good state of preservation. There was evidence on behalf of the plaintiff going to show that it was almost rotten, while the city's answers to the interrogatories tend to show that it was not as decomposed as some of the plaintiff's witnesses claimed.

The plaintiff denied that she was sitting on the guard rail at the time she and the baby fell into the ditch, but there is some evidence from which the jury could have found that such was the case. We have reference to the picture of the guard rail introduced by the city and the following interrogatory and answer thereto: 'Q. Is it a fact that said guard rail was broken? A. Yes, it appeared that some person or object had pushed the rail downward and broken it.'

The appellant, the plaintiff below, does not contend that under the evidence presented she was entitled to an affirmative instruction. In fact, the record does not indicate that such an instruction was requested by the plaintiff.

The argued assignments of error relate to the trial court's action in giving certain written charges requested by the defendant and in overruling those grounds of plaintiff's motion for new trial which took the point, in effect, that the verdict 'is not sustained by the great preponderance of the evidence.' § 276, Title 7, Code 1940; Parker v. Hayes Lumber Co., 221 Ala. 73, 127 So. 504.

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...