McMurphy v. Pipkin
| Decision Date | 14 January 1954 |
| Docket Number | 3 Div. 660 |
| Citation | 69 So.2d 682,260 Ala. 203 |
| Parties | McMURPHY v. PIPKIN. |
| Court | Alabama Supreme Court |
Broox G. Garrett, Brewton, for appellant.
McMillan, Caffey & McMillan, Brewton, for appellee.
Action by appellee, plaintiff below, to recover damages for personal injuries allegedly sustained by her as the result of negligence of an employee of appellant, defendant below, in creating an obstruction on a public sidewalk. There was a jury verdict in favor of defendant. The plaintiff filed a motion to set aside the verdict and the judgment rendered thereon, and to grant her a new trial. This appeal is from the judgment granting said motion.
There were thirteen grounds assigned in support of the motion. The trial court, however, in granting the motion, did not specify the ground or grounds on which it was granted. Therefore, if we should find that it was justified upon any of the grounds assigned, the action of the trial court must be here affirmed. Ford v. Sellers, 257 Ala. 404, 405, 59 So.2d 799; Birmingham Electric Co. v. Toner, 251 Ala. 414, 419, 37 So.2d 584; American Mut. Liability Ins. Co. v. Louisville and N. R. Co., 250 Ala. 354, 361, 34 So.2d 474; Lindsay Products Corporation v. Alabama Securities Corporation, 247 Ala. 662, 663, 25 So.2d 852.
The complaint alleges that 'the plaintiff was walking in a southerly direction on the paved sidewalk of South Main Street in the City of Atmore, Escambia County, Alabama, said sidewalk being a public thoroughfare in said city; that when she reached a point on said sidewalk opposite and adjacent to 'The Sweet Shop', a restaurant operated by Will J. Sharpless, one William Stotts, an agent, servant or employee of the defendant W. J. McMurphy and who was then and there acting in the scope of his employment and in the lime of his duties on behalf of McMurphy's Dairy, suddenly, negligently and with great force opened a screen door which opened outwardly from said Sweet Shop on to said sidewalk and thereby caused said screen door to strike the plaintiff with such force as to knock her off of said sidewalk and cause her to fall to the street which is at a level considerably below said sidewalk and to suffer the injuries hereinafter set out.'
The defendant interposed to the complaint the following plea:
Plaintiff demurred to this plea on the following grounds: that 'no facts are set out showing that there existed any danger which the plaintiff was negligent in not apprehending'; that 'said plea seeks to fasten upon the plaintiff a duty to see that a sidewalk is safe for travel'; that 'a pedestrian may presume that a sidewalk is safe for travel and is not under the duty to see that the way is clear and unobstructed'; that 'it is not averred how long said sidewalk had been obstructed or what opportunity the plaintiff had to observe same'; and that 'it is not negligence on the part of a pedestrian lawfully using a public sidewalk to fail to look for danger where there is no reason to apprehend same.'
As we understand it, and as argued by counsel for plaintiff, the complaint charges the defendant with negligence in creating an obstruction on a public sidewalk which caused the plaintiff, a pedestrian, to be injured. Defendant's plea 4X sets up as a defense, in avoidance of the charged negligence, that the plaintiff was guilty of contributory negligence. Plaintiff's demurrer challenged the sufficiency of this plea; and the question is, Did the court err in overruling the demurrer? Our view is that the demurrer was well taken and should have been sustained. Accordingly, since the overruling of the demurrer was one of the grounds assigned in support of the motion for a new trial, we will not disturb the action of the trial court in granting said motion.
A pedestrian traveling upon a public sidewalk may assume that it is in a proper condition for public travel, and is not required to be on the lookout for defects or obstructions; and in the absence of notice of the presence of a defect or obstruction, or notice of facts sufficient to put a man of ordinary care and prudence on the lookout, he cannot be guilty of contributory negligence if injured by the defect or obstruction. City of Birmingham v. White, 242 Ala. 211, 214, 5 So.2d 464; Great Atlantic & Pacific Tea Co. v. Miller, 229 Ala 313, 314, 156 So. 834; City of Decatur v. Gilliam, 222 Ala. 377, 379, 133 So. 25; Walker County v. Davis, 221 Ala. 195, 197, 128 So. 144; City of Birmingham v. Edwards, 201 Ala....
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Bailey v. City of Mobile
...boxes on the sidewalk. The case which more nearly resembles that presented by the pleadings here under consideration is McMurphy v. Pipkin, 260 Ala. 203, 69 So.2d 682, which is cited in brief filed on behalf of plaintiff, appellant. In that case the complaint alleged, in pertinent parts, as......
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City of Tampa v. Banks
...observe the general condition of the sidewalk immediately ahead. Cf. Jacobs v. Claughton, Fla.App.1957, 97 So.2d 53; McMurphy v. Pipkin, 1954, 260 Ala. 203, 69 So.2d 682. If the sidewalk is apparently in good condition, containing nothing to put the pedestrian on notice of the possibility o......
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Jacks v. City of Birmingham, 6 Div. 209
...as the situation on the whole would lead a reasonably prudent man to observe in respect to conditions immediately ahead. McMurphy v. Pipkin, 260 Ala. 203, 69 So.2d 682; City of Birmingham v. Smith, 241 Ala. 32, 200 So. 880; Berry v. Dannelly, 226 Ala. 151, 145 So. 663. Defendant's given Cha......