Van Antwerp Realty Corp. v. Walters

• Decision Date: 22 December 1949
• Docket Number: 1 Div. 382.
• Citation: 43 So.2d 537,253 Ala. 187
• Parties: VAN ANTWERP REALTY CORPORATION v. WALTERS.
• Court: Alabama Supreme Court

43 So.2d 537

253 Ala. 187

VAN ANTWERP REALTY CORPORATION v. WALTERS.

1 Div. 382.

Supreme Court of Alabama.

December 22, 1949

Johnston, McCall & Johnston, of Mobile, for appellant.

Allan R Cameron, Francis H. Inge and Inge, Twitty, Armbrecht & Jackson, all of Mobile, for appellee.

The following charges were given at the request of plaintiff:

'5. The Court charges the jury that a pedestrian walking on a public sidewalk has the right to assume that the sidewalk is maintained in a safe condition and is not bound to be on the lookout for any special dangers in said sidewalk.

'6. The Court charges the jury that a traveler who is ignorant of defects in a public sidewalk has the right to assume the safety of the public sidewalk and is not bound to be on the lookout for special danger therein.

'8. The Court charges the jury that there can be no proof in dollars and cents of the value of mental and physical suffering and pain, but the damages for them, if the plaintiff is entitled to recover is within the sound discretion of the jury, but cannot exceed the amount demanded in the complaint.'

FOSTER, Justice.

This is an appeal from a judgment in favor of appellee for personal injuries caused by his stepping in a hole in the sidewalk in downtown Mobile.

Appellant maintained a coal chute in the sidewalk, covered by a large steel plate, in which was a smaller hole about eighteen by twenty inches also covered by a steel plate. The small hole was open about three-thirty to four o'clock in the morning without guards or warning signals of any kind. Appellee was walking along the sidewalk, where it was dark and stepped in the hole at about that hour and received personal injuries.

The case was tried on three counts. Count 1 charges negligence in maintaining the said hole or coal chute in a dangerous and unsafe manner. Count 2 charges negligence in not properly maintaining said sidewalk, in that defendant permitted the said opening or coal chute to remain open in the nighttime without a guard rail around it or without lights or warnings of any kind to the public that the hole was uncovered and was an unsafe place in the said sidewalk for pedestrian traffic. Count 3 charges that defendant negligently maintained a coal chute or opening in the sidewalk, in that defendant failed to maintain the portion of said sidewalk in a reasonably safe condition for the travel of pedestrians on said public sidewalk, and defendant failed to place guard rails, lights or other warning signals that said coal chute or opening in said sidewalk was open and in a dangerous condition.

There was no demurrer to the complaint. Defendant filed two pleas, the general issue and contributory negligence. A demurrer was sustained to the plea of contributory negligence, as to which no point is here raised. The case was tried on the three counts and general issue.

In the course of the court's oral charge to the jury he stated in substance that if the defendant installed the opening in the sidewalk, the law places upon him the duty of reasonable diligence to see that the sidewalk is maintained in a condition reasonably safe for the passage of pedestrians, and that for plaintiff to recover it was necessary for him to reasonably satisfy the jury from the evidence that the defendant failed to exercise reasonable diligence to make said sidewalk reasonably safe for the passage of pedestrians either by creating a defect in the sidewalk or after having created the defect negligently failing to safeguard that defect so created by the erection of barriers or lights. Such definition of the duty on the part of defendant in connection with that situation is repeated several times in the charge in which it is clearly stated that the duty of defendant is to exercise reasonable diligence to make the sidewalk reasonably safe for the passage of pedestrians on account of the opening which was constructed and maintained by the defendant.

There was no question in the case but that defendant maintained the coal chute or hole in the sidewalk into which plaintiff fell.

An insistence made by appellant is that there was error in giving at the instance of the plaintiff three written charges numbered 5, 6 and 8. Charges 5 and 6 purport to express the law with respect to the rights of plaintiff affecting his duty in such a situation, and in substance declare that he had the right to assume that the sidewalk was maintained in a safe condition. Both charges 5 and 6 present the same legal question. The appellant insists that the error consisted in not referring to the safety of the condition mentioned in the charge as being reasonably safe. In other words, the point is that a pedestrian walking along the sidewalk has the right to assume that the sidewalk is maintained in a reasonably safe condition but cannot assume that it is maintained in an absolutely safe condition. A condition may be properly safeguarded and not be absolutely safe. One may disregard the warnings and be injured or fail to make casual observation.

It is not the duty of one who maintains such a condition to do so in a manner that it will be absolutely safe to one traveling along the sidewalk, City of Birmingham v. Smith, 241 Ala. 32, 200 So. 880, but it must be reasonably safe by proper guards or warning signals. We have an abundance of authority to sustain that principle. Hill v. Reaves, 224 Ala. 205, 139 So. 263; Texas Co. v. Williams, 228 Ala. 30, 152 So. 47; City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542; City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; Brooks v. City of Birmingham, 239 Ala. 172, 194 So. 525; City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4.

It is also true that when contributory negligence is charged to the plaintiff, it is proper for the court to charge the jury, at the instance of plaintiff, that he has the right to assume that the sidewalk is maintained in a reasonably safe condition. City of Birmingham v....