Mayor of Birmingham v. Starr

COLEMAN, J.

The appellee, while walking along a sidewalk of one of the streets of the city of Birmingham, fell, from which she received a personal injury. She brought this action to recover damages sustained by the fall. The complaint avers a depression in the sidewalk, of three feet in width and three inches in depth, which caused the fall, knowledge of the defect, the duty to repair, and neglect of duty in not repairing it. The defendant demurred to the complaint, assigning two grounds, the second and fourth, which we deem entitled to consideration. The second is “that the complaint does not show that the sidewalk was in such condition as to be dangerous to a person exercising ordinary care.” It may be that courts have judicial knowledge that every slight elevation or depression in the streets or sidewalks of a city are such imperfections, as not to be dangerous to persons exercising ordinary care, as held in the case of Raymond v. City of Lowell, 53 Am. Dec. 57, 6 Cush. (Mass.) 524; but the defects described in the complaint, with the averments of injury sustained, prima facie show an actionable defect. Much depends upon the circumstances and conditions, whether a defect is actionable, 'which can be shown only by evidence, but which circumstances and conditions need not be detailed in the complaint.

The fourth ground of demurrer raises the-question of the liability of the city under its charter, for failing to keep in good repair its streets and sidewalks after notice. The complaint must be construed as if it contained at length the provisions of the charter, which impose the duty upon the city, and considered in this view, the question is properly raised by demurrer. — Albrittin v. Mayor & Aldermen of Huntsville, 60 Ala. 494; Smoot v. Wetumpka, 24 Ala. 121.

It is conceded, and it has become the settled law now, wherever a city or town is required, or power is conferred, by its charter, to repair and keep in good condition its streets and sidewalks, the duty arises, and the city is liable to any one sustaining damages by a failure to perform the duty, unless the city is exempted from responsibility, and we think it may be safely added, that liability should be clearly negatived, or the exemption clearly stated. — 2 Dillon Mun. Corp., §§ 1017, 1018, 1023, and authorities cited to the text. Counsel for appellant contend, that conceding this to be the law, the charter of the city of Birmingham contains just such provisions. The sections of the charter relied up are contained in sections 21 and 35, Acts of 1890-91, pp. 133, 149. Subdivision 11 of section 21, p. 135, reads as follows : “To establish streets, avenues and alleys, and regulate and control the paving and curbing of streets sidewalks, and the fixing and giving the grade thereof; to compel the removal of obstructions from any highway in the city, and to open, alter, widen, extend, grade, cut down, fill in and pave or otherwise alter and improve all streets, avenues, sidewalks, alleys and public places of the city; but the said mayor and aldermen shall not be liable for a failure to exercise this power.”

“Section 35. Beit further enacted, That the board of mayor and aldermen shall have full power and authority to pass any other laws or ordinances they may deem necessaiy to carry into effect the rights they possess to improve the highways of the city as aforesaid at the expense of abutting prox^erty owners, and to assess the the same according to frontage or benefits, as they deem best, and to provide the machinery for the assessment and collection of such assessment, and to make them a lien on such abutting x>rox)erty, and the power granted by such section is an additional grant, and shall not affect the rights and xDOwers above conferred ux>on said board of-mayor and aldermen; but the city shall not be liable for the failure by the board to exercise these and other powers in resxoect to streets, avenues,. alleys and sidewalks. ’ ’

In the first quoted section authority is given 66 ‘ ‘to establish streets, * * and to regulate and control the leaving and curbing of streets and sidewalks, and to open * * * alter and improve all avenues, streets and sidewalks. But the mayor- and aldermen shall not be liable for a failure to exercise this x>ower.” Shall not be liable for what? For-a failure to establish streets, sidewalks, and for failing to alter and improve streets and sidewalks, &c. There is nothing in this x>rovision fairly construed to exen^t the city from liability for establishing a dangerous or defective street or sidewalk. The city is not required to establish a street or sidewalk, but if- it undertakes to exercise the power conferred, it must do so in a legal way. In one sense, any repairs upon a street or sidewalk is an improvement, but read in connection with the object intended, and the duties in general owed by a municipality to the public and its citizens, under the charter, “improved,” as used, refers to the betterment of streets and sidewalks . which have been already established and put in proper condition, and not to such repairs and improvements as are necessary to make and keep them reasonably safe for travel. — Bieling v. Brooklyn, 120 N. Y. 98. There was no error in overruling the demurrer to the complaint.

We are of opinion the court erred, in receiving the evidence of the witness, Murphy. The fact that other people may at different times have stumbled or fallen at the same place, was not competent to show either the character of the defect at the time plaintiff fell, or that that she did not exercise ordinary care, or that such other persons had notice of the defect, or'what care they used to avoid injury. It was a collateral inquiry and, not involving knowledge or .intent, does not come within the exception as to collateral facts. The evidence of the witness Murray was especially objectionable in that there was no evidence as to how long before the plaintiff was injured the facts occurred, nor whether the sidewalk was in the same condition.. — 1 Greenl. Ev., §§ 52, 448; Collins v. Dorchester, 6 Cush. (Mass.) 397. If there is anything in the case of Birmingham Railway v. Alexander, 93 Ala. 133, which expresses a contrary rule, it must be modified as herein declared.

We are of opinion there was no error in the admission of the evidence of the witness Goldsmith. One of the issues was as to the extent and character of the defect, and whether it was such as the city -was bound to repair. It was shown that he fell about the same time and at the same place where the plaintiff was injured. Under the authority of the case of Railway Co. v. Alexander, 93 Ala. 133, and authorities cited, we think the evidence admissible.

We find no error in the instructions given at the request of plaintiffs. Charges numbered 2 and 3 may have called for explanatory charges, but neither- assert erroneous propositions of law. Charges 4 and 6- requested by the defendant were properly refused. Each impliedly asserts that independent of any notice a duty rests upon every person who proposes to travel upon the sidewalks, of a city to use ordinary care and prudence to find out whether or not there are dangerous defects in the sidewalks. If these charges had predicated the plaintiff’s duty, upon notice of the defect, or upon notice of facts calculated to put her upon inquiry, or to excite attention and care, they would have been correct. — Mayor &c. v. Tayloe, 105 Ala. 170.

The 7th charge requested is argumentative and otherwise faulty, and was properly refused.

The 5th charge requested by the defendant should have been given. If the plaintiff knew or had reason to believe the defect existed, it was the duty of the plaintiff to be on the lookout for it, and if the light was sufficient to reveal the defect, it was her duty to use reasonable care to avoid the danger.

For the errors pointed out the case must be reversed.

Reversed and remanded.