City of Montgomery v. Supple , 16 Ala. App. 565 ( 1918 )

Appellee sued appellant, a municipal corporation, in case, and grounded her complaint upon section 1273 of the Code of 1907. She procured a judgment, and from this judgment the present appeal is prosecuted.

Appellant makes but one insistence of error upon this appeal, and that is that as a matter of law an abrupt projection of the pavement in the middle of a paved sidewalk of the kind and character disclosed by the record is not an actionable defect.

The courts should never declare as a matter of law that a certain condition constitutes an actionable defect, or fails to constitute an actionable defect, where reasonable minds might arrive at different conclusions in reference thereto.

When facts are disputed, or different minds might arrive at different conclusions from admitted facts, it becomes within the province of juries and not judges to declare the results. Lord v. City of Mobile, 113 Ala. 366, 21 So. 366; City Council of Montgomery v. Wright, 72 Ala. 411, 47 Am. Rep. 422; 28 Cyc. 1502, and cases cited.

The question of negligence is one of law for the court only, when the facts are such that all reasonable men must draw the same conclusion from them. White Swan Laundry Co. v. Wehrhan (Sup.) 79 So. 479, and cases cited.

Municipal corporations are due the traveler upon their public thoroughfares the duty of keeping these thoroughfares to the full width in reasonably safe repair for travel by night as well as by day. Birmingham v. Tayloe, 105 Ala. 170, 16 So. 576; City Council of Montgomery v. Reese, 146 Ala. 410,40 So. 760; McLemore v. West End, 159 Ala. 235, 48 So. 663; Birmingham v. Gordon, 167 Ala. 337, 52 So. 430; City Council of Montgomery v. Wright, supra; City of Montgomery v. Ross,195 Ala. 362, 70 So. 634.

Did the appellant comply with or breach this duty when it suffered to be and remain in its sidewalk an abrupt projection of the pavement of the character disclosed by the record? Reasonable minds might arrive at different conclusions in answering this question, hence a jury problem arose, and the trial court properly so ruled. Birmingham v. Starr, 112 Ala. 98,20 So. 424; Montgomery v. Wright, supra.

The facts in the instant case relative to the defects in the sidewalk, as disclosed by the record, are not unlike the facts in the case of City of Birmingham v. Edwards (Sup.) 77 So. 841.¹ In that case, the fact that a sidewalk which had a projection or step thereon testified to by some witnesses as being three-fourths of an inch, and by others as much as six inches, appears to have been treated and considered as a matter of course, that such a difference in grade on the sidewalk in a city was a defect, and all the way through the opinion the Supreme Court, speaking through Gardner, J., treats this difference in grade on the sidewalk as being a defect. City of Birmingham v. Edwards 201 Ala. 251, 77 So. 841.

No errors appear in the record, and the judgment appealed from is affirmed.

Affirmed.

¹ 201 Ala. 251.