Smith v. City of Birmingham, 6 Div. 23.

CourtSupreme Court of Alabama
Writing for the CourtBROWN, Justice.
Citation243 Ala. 124,9 So.2d 299
Docket Number6 Div. 23.
Decision Date25 June 1942
PartiesSMITH v. CITY OF BIRMINGHAM.

9 So.2d 299

243 Ala. 124

SMITH
v.
CITY OF BIRMINGHAM.

6 Div. 23.

Supreme Court of Alabama

June 25, 1942


[9 So.2d 300]

[243 Ala. 125] 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 [243 Ala. 126] 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 [9 So.2d 301] 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...

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12 practice notes
  • City of Birmingham v. Young, 6 Div. 250.
    • United States
    • Supreme Court of Alabama
    • 10 Mayo 1945
    ...or death; but technical accuracy is not required. City of Birmingham v. Hornsby, 242 Ala. 403, 6 So.2d 884; Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; City of Birmingham v. Jeff, 236 Ala. 540, 184 So. 281; Brannon v. City of Birmingham, 177 Ala. 419, 59 So. 63. The gravamen of ......
  • City of Montgomery v. Quinn, 3 Div. 416.
    • United States
    • Supreme Court of Alabama
    • 19 Octubre 1944
    ...remedy the defective condition. The law in this connection is well understood. To the like general effect are Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299, and Pollan v. City of Dothan, 243 Ala. 99, 8 So.2d 813, holding that one using the streets may assume they are reasonably saf......
  • City of Prattville v. Joyner
    • United States
    • Supreme Court of Alabama
    • 12 Mayo 1995
    ...municipality. With respect to (1) above, the cases of City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; City of Birmingham v. Young, 246 Ala. 650, 22 So.2d 169; and City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99, are autho......
  • City of Anniston v. Rosser, 7 Div. 546
    • United States
    • Supreme Court of Alabama
    • 1 Agosto 1963
    ...suit for injury or death is to enable the municipality to investigate and determine the merits of the claim, Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; and to adjust claims without the expense of litigation if the circumstances warrant. Cole v. City of Birmingham, 243 Ala. 561,......
  • Request a trial to view additional results
12 cases
  • City of Birmingham v. Young, 6 Div. 250.
    • United States
    • Supreme Court of Alabama
    • 10 Mayo 1945
    ...or death; but technical accuracy is not required. City of Birmingham v. Hornsby, 242 Ala. 403, 6 So.2d 884; Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; City of Birmingham v. Jeff, 236 Ala. 540, 184 So. 281; Brannon v. City of Birmingham, 177 Ala. 419, 59 So. 63. The gravamen of ......
  • City of Montgomery v. Quinn, 3 Div. 416.
    • United States
    • Supreme Court of Alabama
    • 19 Octubre 1944
    ...remedy the defective condition. The law in this connection is well understood. To the like general effect are Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299, and Pollan v. City of Dothan, 243 Ala. 99, 8 So.2d 813, holding that one using the streets may assume they are reasonably saf......
  • City of Prattville v. Joyner
    • United States
    • Supreme Court of Alabama
    • 12 Mayo 1995
    ...municipality. With respect to (1) above, the cases of City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; City of Birmingham v. Young, 246 Ala. 650, 22 So.2d 169; and City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99, are autho......
  • City of Anniston v. Rosser, 7 Div. 546
    • United States
    • Supreme Court of Alabama
    • 1 Agosto 1963
    ...suit for injury or death is to enable the municipality to investigate and determine the merits of the claim, Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; and to adjust claims without the expense of litigation if the circumstances warrant. Cole v. City of Birmingham, 243 Ala. 561,......
  • Request a trial to view additional results

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