City of Birmingham v. Hornsby

While walking on the sidewalk along the south side of First Avenue, North, between Twentieth and Twenty-first Street and in front of the premises known as 2023 First Avenue, North, in the City of Birmingham, Alabama, plaintiff's right foot was caught on the rim of an elevator opening protruding about one-half inch above the surface of the sidewalk and as she stepped with her left foot upon the elevator lid she slipped and fell evidently with some force to the sidewalk, sustaining injuries for which she recovered a judgment against the city.

This elevator lid was smooth and slick as distinguished, by the proof, from other such lids in the city that are corrugated and rough. The left foot was near the center of the elevator and the door lid gave way to some extent in a slant and it could be reasonably inferred this fact accelerated the fall.

It therefore appears the jury could infer that there existed for a long number of years a combination of conditions creating a situation not reasonably safe for pedestrians and we think the case comes within the influence of City of Birmingham v. Monette, 241 Ala. 109, 1 So.2d 1, 133 A.L.R. 1020, and that under that authority the affirmative charge was properly refused. It may be added, also that under order of the court the jury, by acquiescence or agreement of the parties, viewed the scene of the accident and the following authorities are applicable upon the question of the affirmative charge. City of Roanoke v. Johnson et al., 229 Ala. 496, 158 So. 182; Warble v. Sulzberger Co. of America, 185 Ala. 603, 64 So. 361; Faught v. Leith et al., 201 Ala. 452, 78 So. 830; Folmar Mercantile Co. v. Town of Luverne, 203 Ala. 363, 83 So. 107.

The only other question relates to the sufficiency of the notice, as required by what is now § 659, Title 62, Code 1940, to the City. Our authorities are uniform to the effect that technical accuracy is not required. Substantial compliance suffices. There was no intention on the part of the law makers that such a statute should be used as a stumbling block or pit fall to prevent recovery by meritorious claimants. McKinnon v. City of Birmingham, 196 Ala. 56, 71 So. 463.

The notice in this case gives all information necessary for an intelligent investigation of the place and nature of the accident, the damages claimed, the residence of the claimant and indeed the proof discloses that the assistant city engineer did in fact make such intelligent investigation and was a helpful witness for the city. The notice contained in substance all the matters of information required by the statute and was sufficient. Defendant's argument to the contrary would require a very minute detail and technical accuracy not contemplated by the statute.

We have considered the two points pressed in argument and find them without merit. Further elaboration is unnecessary. There was no error to reverse. Let the judgment stand affirmed.

Affirmed.

THOMAS, BROWN, and FOSTER, JJ., concur.

On Rehearing.