Johnson v. City of Opelika, 5 Div. 574

CourtSupreme Court of Alabama
Writing for the CourtSIMPSON; LIVINGSTON
Citation260 Ala. 551,71 So.2d 793
Decision Date25 March 1954
Docket Number5 Div. 574
PartiesJOHNSON v. CITY OF OPELIKA.

Page 793

71 So.2d 793
260 Ala. 551
JOHNSON

v.
CITY OF OPELIKA.
5 Div. 574.
Supreme Court of Alabama.
March 25, 1954.

[260 Ala. 552]

Page 794

Walter B. Venters, Opelika, for appellant.

[260 Ala. 553] McKee & Maye, Opelika, for appellee.

SIMPSON, Justice.

Tort action by plaintiff against defendant, a municipal corporation, for personal injuries. The complaint consisted of two counts. Defendant's demurrer being overruled, the case was tried to the jury on the pleas of the general issue and contributory negligence. At the conclusion of the evidence, the trial court, at the request of the defendant, directed a verdict in its favor and a judgment for the defendant was entered accordingly. The plaintiff appeals.

Reviewing the evidence in the light most favorable to the plaintiff, as we must do, Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224, we have concluded direction of the verdict for the defendant was improper and that the judgment must be reversed and the cause remanded.

The evidence for the plaintiff tended to show the following: On May 5, 1951, about 9:30 P.M. the plaintiff, carrying packages in his arms, was walking home on a dirt sidewalk of Geneva Street located in Opelika, Alabama; the sidewalk was open to the general public and people traversed it daily; the plaintiff, walking in the center of the sidewalk, came upon a storm sewer catch basin, which was located in the sidewalk; said catch basin, in fact, covered the sidewalk and one walking there would be forced to step on one of the two concrete slabs which covered the basin or walk into the street; the sides and top of the catch basin were about eight inches above the level of the sidewalk. When the plaintiff stepped on the slab it turned over the edge of the basin, causing him to fall or be thrown onto the curb; at the time of [260 Ala. 554] the accident, there were no lights in the area and the lights in the Blossom Shop (a shop located in the vicinity of the accident) were not turned on. The plaintiff had walked along this street many times before and knew the basin was there, but the last time he had been in the area (some three weeks prior to the time of the accident) he had stepped on the basin cover and the slabs were firm. Said basin was installed by the City of Opelika twelve or fifteen years prior to the accident, the purpose of which was to drain water off the street. It is in fact a street drain carrying water into the pipes of the drainage system of the City. The Street Superintendent for the City testified that he had on several occasions prior to the accident straightened up the slabs and that the last time he was there one slab was stricking out a couple of inches. He also testified that the slabs are not fastened down in any way, but just lie there.

The basis of the defendant municipality's liability is § 502, Title 37, Code 1940, which provides:

Page 795

'No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, [a] unless said injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employe of the municipality engaged in work therefor; and while acting in the line of his duty, or [b] unless the said injury or wrong was done or suffered through the neglect, carelessness, or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council, or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council, * * *.'

It is well established that a municipality is under a duty to maintain its sidewalks in a reasonably safe condition for the use of the public and for its negligent failure so to do it is liable in tort to a person thereby injured. City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23.

This doctrine is recognized by the statute, supra, and 'anything that may reasonably be expected to interfere with the safe use of a sidewalk by pedestrians is a defect'. City of Bessemer v. Whaley, 187 Ala. 525, 529, 65 So. 542, 543.

Count Two of the complaint sought to recover under the second provision (b) of the foregoing statute, i. e., the negligence of the municipality in failing to remedy a defect in the sidewalk after...

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5 practice notes
  • City of Prichard v. Kelley
    • United States
    • Supreme Court of Alabama
    • 30 Mayo 1980
    ...Bessemer, 289 Ala. 449, 268 So.2d 731 (1972); City of Florence v. Stack, 275 Ala. 367, 155 So.2d 324 (1963); Johnson v. City of Opelika, 260 Ala. 551, 71 So.2d 793 (1954). The question then becomes one of whether the maintenance of traffic control signs is a part of the City's responsibilit......
  • Wojciechowski v. Louisville & N. R. Co., 7 Div. 607
    • United States
    • Alabama Supreme Court
    • 9 Julio 1964
    ...of the defendant below, we are required to review the evidence in the light most favorable to the plaintiff. Johnson v. City of Opelika, 260 Ala. 551, 71 So.2d The plaintiff contends that when the evidence is viewed in the light most favorable to her, the conclusion is inescapable Page 75 t......
  • McCarroll v. City of Bessemer, 6 Div. 938
    • United States
    • Supreme Court of Alabama
    • 28 Septiembre 1972
    ...& Sanitary Sewer Board, 261 Ala. 234, 73 So.2d 552; City of Florence v. Stack, 275 Ala. 367, 155 So.2d 324; Johnson v. City of Opelika, 260 Ala. 551, 71 So.2d 793. An evaluation of the cases may cause one to wonder as to whether the duty of a municipality in this connection is a corporate d......
  • McAdory v. Jones, 6 Div. 592
    • United States
    • Supreme Court of Alabama
    • 25 Marzo 1954
    ...predicated solely upon the principles which we have discussed. The demurrer should have been sustained to the bill in that status. Later, [260 Ala. 551] as said above, during the progress of the trial the complainants amended their bill in an effort to invoke a right to vacate the deed in q......
  • Request a trial to view additional results
5 cases
  • City of Prichard v. Kelley
    • United States
    • Supreme Court of Alabama
    • 30 Mayo 1980
    ...Bessemer, 289 Ala. 449, 268 So.2d 731 (1972); City of Florence v. Stack, 275 Ala. 367, 155 So.2d 324 (1963); Johnson v. City of Opelika, 260 Ala. 551, 71 So.2d 793 (1954). The question then becomes one of whether the maintenance of traffic control signs is a part of the City's responsibilit......
  • Wojciechowski v. Louisville & N. R. Co., 7 Div. 607
    • United States
    • Alabama Supreme Court
    • 9 Julio 1964
    ...of the defendant below, we are required to review the evidence in the light most favorable to the plaintiff. Johnson v. City of Opelika, 260 Ala. 551, 71 So.2d The plaintiff contends that when the evidence is viewed in the light most favorable to her, the conclusion is inescapable Page 75 t......
  • McCarroll v. City of Bessemer, 6 Div. 938
    • United States
    • Supreme Court of Alabama
    • 28 Septiembre 1972
    ...& Sanitary Sewer Board, 261 Ala. 234, 73 So.2d 552; City of Florence v. Stack, 275 Ala. 367, 155 So.2d 324; Johnson v. City of Opelika, 260 Ala. 551, 71 So.2d 793. An evaluation of the cases may cause one to wonder as to whether the duty of a municipality in this connection is a corporate d......
  • McAdory v. Jones, 6 Div. 592
    • United States
    • Supreme Court of Alabama
    • 25 Marzo 1954
    ...predicated solely upon the principles which we have discussed. The demurrer should have been sustained to the bill in that status. Later, [260 Ala. 551] as said above, during the progress of the trial the complainants amended their bill in an effort to invoke a right to vacate the deed in q......
  • Request a trial to view additional results

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