Mayor of Birmingham v. Tayloe , 105 Ala. 170 ( 1894 )

COLEMAN, J.

The appellee, Tayloe, sued the appellant to recover damages resulting from an obstruction placed and left on the sidewalk of 19th Street, near its intersection with 4th Avenue. The evidence tends to show that as plaintiff was on his way home, about dark or a little after, he collided wish the handles of a large box or tool-chest projecting from the box or chest, which caused him to fall on the sidewalk and resulted in the fracture of his arm. The defendant pleaded the general issue, and contributory negligence. The trial resulted in a verdict for the plaintiff. . Various exceptions were taken to the rulings of the court upon the admission and exclusion of evidence, and to the instructions to the jury given and refused.

It was the duty of the municipal corporation of Birmingham , to keep the streets and sidewalks in a reasonably safe condition for travel, and for use by its citizens and the public generally; and this duty extends to the entire width of the streets and sidewalks appropriated to such use and purposes.—City Council of Montgomery v. Wright, 72 Ala. 411; Bradford v. Anniston, 92 Ala. 349; Mayor & Aldermen of Birmingham v. Lewis, Ib. 352; Hubbard v. Concord, 35 N. H. 52, (69 Amer. Dec. 520). It is not denied that the box or chest with projecting handles, as described in the complaint, was upon the sidewalk, on the side next to the street; that the box was about seven feet long, two and a half feet wide, and between two and three feet in height, with handles extending out about one foot; nor is it seriously contended that plaintiff, in walking along the sidewalk, collided with the box or its handles and fell and was injured. The evidence shows that the place where this box was left was at or near one of the most frequented and public thoroughfares and places in the city, being just diagqnally. across 19th street and 4th Avenue from the building in which the city offices were held and kept, and where the City Council and Mayor and Aldermen met, and in which building was the city market. There is some evidence tending to show that the box had been left there for several days, while that for the defense tended to show that it had been there only during the day at the close of which the accident happened, and was removed on the following morning. Considering the publicity of the place, the duty of patrolmen and of the street commissioner, which were proven; and the admitted length of time the box was permitted to remain at the place, its size and character, we would declare, as matter of law, that the defendant had knowledge of the fact, or was chargeable with culpable negligence in not knowing, that the box had been placed and left for so long a time on the sidewalk. The fact that there was room between the box and the opposite limit of the sidewalk to admit of safe travel by one using the part of the sidewalk thus left open, does not per se excuse the obstruction of another part of the sidewalk which was equally as much used by the public for travel, and which it was entitled to use; nor is it competent to show as a defense that other persons, travelled by the obstruction with safety. This would be a fact merely collateral to the issue. Hubbard v. Concord, 35 N. H. 52, supra. As a further defense under the general issue, the defendant; attempted to show, that the box was put there unnecessarily and wrongfully, and without the authority of the defendant, by one Connell, an independent contractor who was engaged in repairing the sidewalks, and that putting the box on the sidewalk was ‘ ‘merely collateral to the work contracted to be done.” In support of this proposition we are cited to Dillon on Municipal Corporations, §§ 792, 793, and Wilson v. The City of Wheeling, 42 Amer. Rep. 780. The general principle is thus stated in these authorities, but in our opinion the rule has no application to the case at bar. If in the performance of the work of repairs or improvement on the sidewalk, it was necessary to obstruct the sidewalk, the city was bound to protect the public and travel by suitable notice and safeguai’ds. On the other hand, if the obstruction was unnecessary and wrongful, and “merely collateral,” and the city had knowledge of the obstruction, it was equally its bounden duty to remove the obstacle, or' at least to see that the .public and travel were properly notified and guarded against its danger.

It was further contended, under the plea of contributory negligence, that the plaintiff was‘heedless and inattentive, and failed to exercise the ordinary care, required of all persons at all times for their own safety. Of course, if the plaintiff saw-the obstruction, or had • notice.of its. presence, or knowledge of such facts as were calculated to put a man of ordinary and reasonable capacity on the look-out, or inquiry, and under these circumstances failed to exercise ordinary care, he would have been guilty of contributory negligencebut the doctrine of “heedlessness” and “inattention,” as generally understood, or neglect to use reasonable care, does not arise when a person has the legal right to assume that he may proceed with safety, and no fact or circumstance is brought to his notice calculated to excite attention or care. A person travelling upon the sidewalks of a municipal corporation in the day time, is not required to be on the look-out for obstructions, nor is he required to feel his way at night. He may assume they are in a proper condition for public travel. Much less"can a person, accustomed daily to pass over a sidewalk, be chargeable with heedlessness or culpable negligence in not discovering an obstruction placed upon the sidewalk in the interim of his travel.

The defendant introduced evidence that there were barrels with planks on top of them and lighted lamps on the plank placed in such a position as to give notice of the obstruction, and to serve as a guard against its danger. There seems to have been a diagram before the jury, and witnesses were examined with reference to the diagram. The record states in some instances that the witness being examined pointed to a certain place on the diagram and testified as to some fact with reference to the designated point on the diagram. The diagram is not in the record, and it is in no manner described. We can not determine from the record with entire satisfaction the weight to be given to facts thus testified to. Our conclusion is that the barrels and lamps were not placed, for the purpose of protection against the box or to give notice of its presence. Connell, the contractor, seems to have been at work on the sidewalk on the north side of 4th Avenue, beginning at 19th Street and running east. Nineteenth Street runs northerly, and the box was on 19th Street, north of the sidewalk of 4th Avenue. These barrels, as we understand the evidence, were all on the sidewalk on 4th Avenue and placed there to prevent persons from stepping on ‘ the new work being done on the sidewalk of 4th Avenue. Persons coming south on the sidewalk of 19th Street would either collide with the box ■ or pass by it' before reaching the barrels. So a person going north on the east sidewalk of 19th Street, as the plaintiff was travelling, would encounter the barrel on the sidewalk at 4th Avenue. These barrels necessitated his turning to the left, so as to pass around them. As soon as the end of the row of barrels was reached, it was natural to turn again to the right so as to regain the sidewalk. The barrels did not extend up 19th Street towards the box. There was no protection or guard as to the box. There was no light on the box. There was nothing calculated to excite attention or inquiry as to any obstruction after passing the barrels.

As we understand the evidence, the only question of disputed fact, as to the liability of the defendant, was whether the plaintiff saw or knew of the presence of the projecting handles, or had notice of facts, calculated to excite attention, and did they gause him to stumble and fall, and fracture his arm. On all other questions as to the liability (not extent of damage) of the defendant, the court might well have given for plaintiff the general charge ; for the fact that other persons may have passed the box that evening or night, could not be proven or considered as a fact tending to show that plaintiff knew of the presence of the obstruction, or failed to exercise ordinary care. We have no proper means of knowing what notice such other persons had, or what care they used. Such facts are entirely collateral to the issue before the jury. There was no error in the charges refused to the defendant when referred to the evidence and considered on their own merits on these questions.

The city ordinances were proven strictly in accordance with the rule declared in Barnes v. Alexander City, 89 Ala. 602, and the fact that the charter prescribes that they may be proven in another way, does not affect the rule. — Acts of 1890-91, p. 127.

We feel bound to reverse the case on the doctrine that the allegata and probata must correspond to entitle a plaintiff to recover. The second count avers, that “the defendant did knowingly, wrongfully and willfully and negligently put and allow to be put and placed upon said sidewalk * * * * one large box or tool chest with projecting handles, ” &c. There is evidence tending to show culpable negligence on the part of the defendant in failing to put up notice or guards around the obstruction, as well as negligence in not removing it or having it removed, as averred, but we have found no evidence tending to sustain the charge that “the defendant put” and allowed the box to be put and placed on the sidewalk. If the complaint had been framed in accordance with the evidence, we would feel constrained to affirm the case, but as framed, under the evidence, the court should have instructed the jury at the written request of the defendant, to find the issue for the defendant under the second count. The complaint is amendable in respect to the variance stated. The appellee has filed no brief in the case, and we do not know upon what part of the evidence he relied to sustain the averment in the second count to which we have adverted.

Reversed and remanded.