Smith v. City of Birmingham

• Citation: 243 Ala. 124,9 So.2d 299
• Decision Date: 25 June 1942
• Docket Number: 6 Div. 23.
• Parties: SMITH v. CITY OF BIRMINGHAM.
• Court: Supreme Court of Alabama

9 So.2d 299

243 Ala. 124

SMITH v. CITY OF BIRMINGHAM.

6 Div. 23.

Supreme Court of Alabama

June 25, 1942

Robt. W. Smith and Beddow, Ray & Jones, all of Birmingham, for appellant.

Wm L. Clark, of Birmingham, for appellee.

BROWN Justice.

This is an action on the case by the administrator of the estate of John Herman Rushing, deceased, against the City of Birmingham for wrongfully causing his death, and on the first trial, had on Count "C" of the complaint, resulted in a verdict and judgment for the plaintiff from which the defendant prosecuted an appeal. City of Birmingham v Smith, 241 Ala. 32, 200 So. 880, 883.

On the day previous to Rushing's death resulting from a collision between his automobile and a street car operated on tracks laid in First Avenue North, as appears from the statement in the opinion, the city in improving the street took up "the old pavement, extending from the curb on the south side to near the track 14.9 feet, and along the curb east and west 9 feet, on the south side of the street and had put down new concrete in that space, and piled up the old stone taken out in a heap with other debris, also extending from near the curb to near the car track, and had put on it four or five red lanterns, which were lighted Saturday night. This pile was about 5 feet west of the new work, was about 4 feet or more wide, and narrowed down as it extended to the car track, and about 30 inches high at the highest point, but sharply tapered at each end."

The gravamen of said Count C, in so far as applied to the city is stated thus: "That the agents, servants or employees of said city who were acting within the line of their duty and scope of their employment at the time, covered said repaired portion of said pavement with concrete, rocks or other hard substance; that said agents, servants or employees negligently failed to safely guard said obstruction and negligently permitted or negligently allowed the said obstruction to remain in an unsafe or dangerous condition."

On the former appeal it was observed: "It is our opinion that there is but one inference which should be drawn respecting his [plaintiff's intestate's] conduct. That is, that he was negligent, and that his negligence proximately contributed to the accident. It is also our opinion that the city was not negligent in respect to the nature of the barrier as a warning signal, as applicable to him considering all the circumstances we have named. It was in plain view for a great distance, with red lanterns on it, under circumstances showing its nature and purpose."

Said Count C stated a cause of action within the first classification made by § 2029, of the Code of 1923, now § 502, Code of 1940, Title 37: "(a) Where the wrong done or suffered was the proximate result of culpable act or omission of some agent, officer, or employé then engaged, within the line of his duty, in the municipality's service." City of Birmingham v. Carle, 191 Ala. 539, 541, 68 So. 22, 23 L.R.A.1915F, 797.

On the second trial the complaint was amended by adding Counts "H" and "K" and withdrawing all other counts. The court sustained the defendant's demurrer to each of said counts, in consequence, the plaintiff took a voluntary non-suit and appealed. Code of 1940, Title 7, § 819; Ex Parte Martin, et al., 180 Ala. 620, 61 So. 905.

The gravamen of Counts "H" and "K" is thus stated: "That the defendant negligently allowed or negligently permitted the said obstruction to become scattered over a large portion of said public street adjacent to said obstruction; that there were large pieces of rock, stone or concrete scattered over the street at or near the said obstruction, and that said scattered pieces of stone, rock or concrete were negligently permitted or negligently allowed to remain for a long period of time at said places in an unguarded, dangerous and unsafe condition for public travel."

When construed most strongly against the pleader, as must be done on demurrer, said counts undertake to state a cause of action arising under the second classification: "(b) Where the wrong done or suffered was the proximate result of culpable municipal omission 'to remedy some defect in the streets, alleys, public ways, or buildings after the same (i.e., defect as defined) has been called to the attention of the council, or after the same (i.e., defect as defined) had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council.' " [Italics supplied.]

The scattered debris, stone and concrete in the part of the street or highway, left open by the barrier for travel, rendering it dangerous, constituted a defect within the purview of the statute. City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542.

That the agents, servants and employees of the city while "engaged in work therefor" [Code of 1940,...