McCarroll v. City of Bessemer, 6 Div. 938

CourtSupreme Court of Alabama
Writing for the CourtHEFLIN; COLEMAN
Citation289 Ala. 449,268 So.2d 731
Decision Date28 September 1972
Docket Number6 Div. 938
PartiesJohnnie Mase McCARROLL, Administratrix of the Estate of Woffin McCarroll v. The CITY OF BESSEMER, a Municipal corporation, et al.

Page 731

268 So.2d 731
289 Ala. 449
Johnnie Mase McCARROLL, Administratrix of the Estate of Woffin McCarroll
v.
The CITY OF BESSEMER, a Municipal corporation, et al.
6 Div. 938.
Supreme Court of Alabama.
Sept. 28, 1972.
Rehearing Denied Nov. 16, 1972.

[289 Ala. 450]

Page 732

Walter Cornelius, and Clarence B. Kelley, Birmingham, for appellant.

[289 Ala. 451] J. Howard McEniry, Jr., Bessemer, for appellees.

HEFLIN, Chief Justice.

This case was assigned to another Justice on original submission. It has been reassigned to the writer for preparation of an opinion for the court.

Appellant-plaintiff Johnnie Mae McCarroll, as administratrix of the estate of her deceased husband Woffin McCarroll, appeals from a nonsuit judgment suffered by her because of an adverse ruling of the trial court in sustaining the demurrers of the appellee-defendant City of Bessemer to the complaint, as last amended. The lower court overruled the demurrers of co-defendant James M. Martin.

The essential allegations of the amended complaint follow. Woffin McCarroll was a laborer in the Street and Sanitation Department of the City of Bessemer, a municipal corporation, and on January 5, 1971, he was killed while riding a garbage truck upon a public alley pursuant to his duties of picking up and emptying garbage cans into said truck. The truck was owned by the City of Bessemer and was being driven by the defendant James M. Martin. James M. Martin negligently drove said truck into or dangerously near a large tree standing within the dedicated portion of said public alley so as to cause Woffin McCarroll to strike said tree and that as a proximate result of the injuries sustained therefrom his death resulted. The tree was located within an area which the City of Bessemer was required by law to maintain in a condition reasonably safe for vehicular travel. The tree had been at said location for a long period of time preceding the date on which Woffin McCarroll was injured and the City knew, or should have known, of the danger imposed thereby to vehicular travel in said public alley.

The amended complaint further alleged that the negligence of the City in allowing said tree to be and remain in such a dangerous[289 Ala. 452] position, and the negligence of the said James M. Martin in negligently driving said truck on said occasion coalesced to cause the death of the plaintiff's intestate. The plaintiff further alleged 'Plaintiff has given notice of her claim to the defendant, City of Bessemer, a municipal corporation, as required by law'. It was not alleged that the driver Martin was an agent, servant or employee of the City.

A plaintiff is entitled to a nonsuit and an appeal from the sustaining of a demurrer to a complaint charging concurrent negligence of two defendants, even though a single defendant remains in the case after the sustaining of the demurrer. Simpson v. City of Montgomery, 282 Ala. 368, 211 So.2d 498.

Page 733

This court will consider, first, the City's contention of governmental immunity. The appellee-defendant City of Bessemer contends that it was engaged in the governmental function of collecting garbage at the time of the alleged accident and was, therefore, immune to suit. On the other hand, appellant-plaintiff McCarroll contends that the gravamen of her complaint against the City was that her intestate was killed through the negligence of the City in failing to remedy a defect in a public alley after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of the defect and, therefore, under such circumstances the doctrine of municipal tort immunity is not applicable.

Title 37, § 502, Code of Alabama, 1940, provides in pertinent part as follows:

'No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation . . . 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 . . .'.

The import of this statute is to impose upon a municipality a legal duty to keep its streets and public ways reasonably safe for ordinary travel. Oliver v. Water Works & 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 duty or a statutory duty. Compare Oliver v. Water Works & Sanitary Sewer Board, supra, with City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542. See also Copeland and Screws, Governmental Responsibility for Tort in Alabama, 13 Ala.L.Rev. 296 (1961); City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841 and Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539.

Regardless of whether the care and maintenance of city streets and alleys is pronounced a corporate or statutory duty, it is clear that the charge against the City of Bessemer as to the death of the plaintiff's intestate was alleged to have been a result of a breach of this duty and the doctrine of municipal immunity is not applicable. Even if the defendant City of Bessemer proves that it was also engaged in a governmental function, i.e., garbage collection, at the time of the fatal...

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10 practice notes
  • City of Prichard v. Kelley
    • United States
    • Supreme Court of Alabama
    • 30 Mayo 1980
    ...to exercise ordinary and reasonable care in keeping streets in a reasonably safe condition for travel. McCarroll v. City of 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 (19......
  • Cason v. Miller (Ex parte Rock Wool Mfg. Co.), 1141252.
    • United States
    • Supreme Court of Alabama
    • 18 Marzo 2016
    ...to the defendant to allege and prove that the provisions of the [Workers' Compensation] Act do apply. McCarroll v. City of Bessemer, 289 Ala. 449, 268 So.2d 731 (1972).“The complaint in this case alleged by way of conclusion that the action was ‘brought pursuant to the Employer's Liability ......
  • Peddycoart v. City of Birmingham
    • United States
    • Supreme Court of Alabama
    • 24 Diciembre 1980
    ...of Anniston v. Rosser (275 Ala. 659), 158 So.2d 99 (1963) Hunnicutt v. City of Tuscaloosa, 337 So.2d 346 (Ala.1976) McCarroll v. Bessemer, 289 Ala. 449, 268 So.2d 731 The record shows that the trial court gave a number of reasons for its decision to grant the defendant's motion for a direct......
  • Allison v. Acton-Etheridge Coal Co., Inc., ACTON-ETHERIDGE
    • United States
    • Supreme Court of Alabama
    • 28 Septiembre 1972
    ...in the gross earnings of his family owned business. Further in his opening statement Mr. Wynn, counsel for the plaintiff, had referred[289 Ala. 449] to the loss of earnings by the plaintiff, and his permanent disability as affecting future loss of income based on the life expectancy of the ......
  • Request a trial to view additional results
10 cases
  • City of Prichard v. Kelley
    • United States
    • Supreme Court of Alabama
    • 30 Mayo 1980
    ...to exercise ordinary and reasonable care in keeping streets in a reasonably safe condition for travel. McCarroll v. City of 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 (19......
  • Cason v. Miller (Ex parte Rock Wool Mfg. Co.), 1141252.
    • United States
    • Supreme Court of Alabama
    • 18 Marzo 2016
    ...to the defendant to allege and prove that the provisions of the [Workers' Compensation] Act do apply. McCarroll v. City of Bessemer, 289 Ala. 449, 268 So.2d 731 (1972).“The complaint in this case alleged by way of conclusion that the action was ‘brought pursuant to the Employer's Liability ......
  • Peddycoart v. City of Birmingham
    • United States
    • Supreme Court of Alabama
    • 24 Diciembre 1980
    ...of Anniston v. Rosser (275 Ala. 659), 158 So.2d 99 (1963) Hunnicutt v. City of Tuscaloosa, 337 So.2d 346 (Ala.1976) McCarroll v. Bessemer, 289 Ala. 449, 268 So.2d 731 The record shows that the trial court gave a number of reasons for its decision to grant the defendant's motion for a direct......
  • Allison v. Acton-Etheridge Coal Co., Inc., ACTON-ETHERIDGE
    • United States
    • Supreme Court of Alabama
    • 28 Septiembre 1972
    ...in the gross earnings of his family owned business. Further in his opening statement Mr. Wynn, counsel for the plaintiff, had referred[289 Ala. 449] to the loss of earnings by the plaintiff, and his permanent disability as affecting future loss of income based on the life expectancy of the ......
  • Request a trial to view additional results

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