City of Birmingham v. Young

LIVINGSTON, Justice. Appeal by the- city of Birmingham, Alabama, a municipal corporation, from a judgment in favor of Mrs. M. J. Young for personal injuries received when an automobile in which she was riding ran or fell into an open ditch in the intersection of Division Avenue and §5th Street in said municipality. Amended count 1, on which the cause was tried, alleged that plaintiff was injured while riding in an automobile over and along a public highway in said city, to-wit, over and along the intersection of Division Avenue and 65th Street. This was the use for which streets are made, and discloses a duty on the part of the city to maintain same in a reasonably safe condition for the use of those riding in automobiles. The count then charges that said automobile ran or fell into an open ditch which was then and there in said intersection, which said ditch was to-wit three feet deep and two and one-half feet wide, and which said ditch was without guards or lights or other warning signals of the presence of said ditch, and as a proximate consequence thereof she was injured, etc.; and avers that all of her said injuries were proximately caused by the negligence of the defendant in negligently permitting said open ditch to be and remain in said highway. *654 While the count does not expressly allege a “defect” or “dangerous condition,” the facts alleged reasonably import the same thing. A ditch in. a public street, such as an automobile may and does run or fall into and cause the severe injuries alleged, and left without guards or warning signals is, prima facie, a dangerous defect. And a count which alleges facts from which negligence may be reasonably inferred, followed by averments of negligence whereby the plaintiff assumes the burden to prove negligence in the particular case, is sufficient. City of Birmingham v. Smith, 231 Ala. 95, 163 So. 611, and cases cited. And a general averment that “all of her said injuries were proximately caused by the negligence of defendant in negligently permitting said open ditch to be and remain in said highway,” is a sufficient averment that such condition was known, or, in the exercise of reasonable care, would have been known to the city authorities. City of Birmingham v. Smith, supra; Lord v. City of Mobile, 113 Ala. 360; 21 So. 366; City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48; City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; City of Albany v. Black, 216 Ala. 4, 112 So. 433. It is alleged in count 1 as amended that, befor^ the commencement of the suit and in compliance with section 504, Title 37, Code of 1940, plaintiff gave notice to the city of her claim for personal injuries, and a copy of which notice is attached to and made a part of count 1 as amended. The pertinent part of said notice is in the following words : “The undersigned, while riding in an automobile over and along a public street in the city of Birmingham, Alabama, to-wit, over and along Division Avenue, and over and along a point on said avenue, to-wit, where said avenue intersects 65th Street and just east of that point of said intersection which is traversed by the railroad tracks of the L & N Railroad Company, was injured by said automobile running or falling into an open ditch which was then and there in said intersection, which said ditch was, to-wit, three feet deep and two and one-half feet wide and which said ditch was without guards or lights or other warning signals of the presence of said ditch in said intersection.” Section 504, supra, is mandatory and substantial compliance is essential to the right to maintain a suit against the municipality for personal injuries or death; but technical accuracy is not required. City of Birmingham v. Hornsby, 242 Ala. 403, 6 So.2d 884; Smith v. City of Birmingham, 243 Ala. 124, 9 So.2d 299; City of Birmingham v. Jeff, 236 Ala. 540, 184 So. 281; Brannon v. City of Birmingham, 177 Ala. 419, 59 So. 63. The gravamen of count 1 as amended is that, defendant negligently permitted an open ditch about two and one-half feet wide and three feet deep to be and remain in the highway without guards or warning signals. Demurrer to this count was overruled without error. The purpose of the statute in requiring the notice to be given is to enable the municipal authorities to investigate and determine whether or not the claim has merit, and if meritorious or doubtful to enable the municipality to adjust and settle the same without litigation. Authorities, supra. In the case of Rodgers v. Commercial Casualty Ins. Co., 237 Ala. 301, 186 So. 684, 686, it was held: “As stated in 33 Corpus Juris 474, the true sense of the word intersection must be ascertained by a .full reference to the context in which it appears in the writing. And on the following page, it is said: ‘As applied to .a street or highway, the space occupied by two streets at the point where they cross each other: the space of a street or highway common to both streets or highways.’ ” See, also, Subdiv. (r) section 1, Title 36, Code of 1940. The evidence showed that 65th Street and Division Avenue are intersecting streets in the city of Birmingham. 65th Street runs in a northerly and southerly direction and is one hundred and ten feet wide from property line to property line. The Louisville and Nashville Railroad Company owns, maintains and uses a right of way sixty feet wide in the center of 65th Street, and which right of way also runs in a northerly and southerly direction, that is, the right of way runs with the street and not across it. The remaining portion of 65th Street — the twenty-five feet on each side of the railroad right of way — is maintained by the city as a street, and used by the public as such. Division Avenue runs in an easterly and westerly direction, is sixty feet wide from property line to property line. This. *655 distance between curb lines is thirty feet. The charted, used and maintained, portion of Division Avenue extends to the railroad right of way, both on the east and west sides of said right of way. That is to say, that portion of Division Avenue occupied by the railroad right of way is not maintained or used as a street. The open ditch involved runs parallel with and just east of the railroad right of way, and is under the rule stated in Rodgers v. Commercial Casualty Ins. Co., supra, in the intersection of 65th Street and that portion of Division Avenue which lies east of the railroad right of way. The ditch is about three feet wide and two feet deep. It is a drainage ditch. It runs across Division Avenue on the east side and parallel with the Louisville and Nashville right of way, and empties into a sixteen-inch pipe which runs east and west under the railroad. The rail-read right of way is higher than the streets: the top of the railroad rails in said right of way being approximately three feet higher than the surface of 65th Street and Division Avenue. There was a street light on the west side of the western driveway of 65th Street. There were no guard rails or barriers guarding the open ditch, or lights or signs warning of its presence. The appellee testified that on the night of March 10th, 1943, at about ten o’clock at night she and her husband, upon leaving a restaurant located on 1st Avenue in the city of Birmingham, drove into Division Avenue at a place thereon which she had never traveled before and started west along said avenue in the direction of the Young residence. Mr. Young was driving a Ford car. Appellee was sitting on the front seat by the driver, and the couple were the only persons in the car. It was raining “pretty” hard as the car proceeded west along' Division Avenue. Appellee further testified that in her judgment the Ford car was traveling from twenty to twenty-five miles per hour as it entered the intersection of 65th Street and Division Avenue; that the first knowledge she had of the presence of the open ditch was when the car ran into it, or was about two feet east rof it. She testified further: “As we were going down you could see a light and it looked like the street went straight through, but after we got out we noticed that the light was across the railroad tracks from us * * * it appeared that the street went straight through, as we could see the light, we thought it went on through.” Appellee also testified as to her injuries as did two physicians and others. Appellee introduced in evidence a diagram of the scene of the accident which had been prepared by the city engineer. It showed that the ditch in question was in the street intersection and not in' the right of way of the Louisville and Nashville Railroad Company. Two pictures of the scene, but with freight cars standing on the railroad track, were in evidence. The freight cars were not on the tracks, and both ends of Division Avenue were open to view when the accident occurred, except, of course, as the view was obstructed by the elevation of the railroad right of way. The assistant city engineer testified that he was, and had been for twenty years, familiar with the intersection where the accident occurred; that the city had cleaned out and maintained the ditch since 1934. It was the duty of the municipality to keep its public streets in a reasonably safe condition for travel by night as well as by day, and this duty extended the entire width of the street. City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4; City of Birmingham v. Simmons, 222 Ala. 111, 130 So. 896, 74 A.L.R. 766; City of Huntsville, v. Phillips, 191 Ala. 524, 67 So. 664; City of Birmingham v. Blood, 228 Ala. 218, 153 So. 430. And where the municipal authorities construct or improve a street and leave therein excavations, embankments, canals or ditches, the municipality is liable for personal injuries caused by the failure to erect guards or railings or warning signals to prevent persons using reasonable care, driving into or over such excavations, embankments, canals, or ditches. City of Montgomery et al. v. Bradley & Edwards, 159 Ala. 230, 48 So. 809; Mayor, etc., of City of Birmingham v. McCary, 84 Ala. 469, 4 So. 630; Mayor, etc., of Birmingham v. Lewis, 92 Ala. 352, 353, 9 So. 243; City of Birmingham v. Smith, 231 Ala. 95, 163 So. 611; City of Birmingham v. Smith, 241 Ala. 32, 200 So. 880; City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276; City of Phœnix v. Mayfield, 41 Ariz. 537, 20 P.2d 296; 43 Corpus Juris p. 1060, § 1836; Chance v. St. Joseph, 195 Mo.App. 1, 190 S.W. 24. *656 In the case of City of Birmingham v. Smith, 241 Ala. 32, 200 So. 880, 882, it was said: 337; Martin v. J. A. Mercier Co., 255 Mich. 587, 238 N.W. 181, 78 A.L.R. 525; 7 McQuillin on Municipal Corporations, 2d Ed. 270, section 3013.” “And generally speaking, persons using public streets may assume that they are reasonably safe for travel, and need not be on special lookout for defects and obstructions. 15 Ala.Dig. 209, Municipal Corporations, 806(2). “But such assumption only protects those who are in the exercise of such ordinary care at the time as the situation on the whole would lead a reasonably prudent man to observe in respect to conditions immediately ahead. Dorminey v. City of Montgomery, 232 Ala. 47(2), 166 So. 689; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A.1915F, 797. “This duty requires a person driving an automobile under the circumstances here disclosed ‘to look ahead with his eyes open, and to see what ordinary vision would necessarily see,’ unless his attention is temporarily abstracted on account of some concurrent extraneous event sufficient to that end. See City of Albany v. Black, 214 Ala. 359, 108 So. 49, 52; Cooper v. Agee, 222 Ala. 334, 132 So. 173(5). “In such a situation, the traveler, having a right to assume that the highway is reasonably safe for such travel and free from dangerous obstructions, and having no need to keep his eyes constantly fixed on the path of the highway, nor to look far ahead for defects which should not exist, nor to exercise such extreme vigilance as to see in any and all events all obstructions or. defects in the highway ahead, nevertheless must use ordinary care, considering the dangerous appliance he is using not to come suddenly upon an obvious barrier or warning signal in plain view ahead. He must keep his eyes open and look ahead with enough constancy to detect an obvious obstruction in plain view, unless his attention is abstracted for good cause. Streets are not required to be in such condition as to insure the safety of reckless drivers. The driver of a motor vehicle must keep his machine under control in such a location, and be alert for those obstructions which should be anticipated. See Graves v. Johnson, 179 Miss. 465, 176 So. 256, 260; McWhorter v. Draughn, 137 Miss. 515, 102 So. 567; 29 Corpus Juris 699, 700; City of Albany v. Black, supra; City of Birmingham v. Edwards, 201 Ala. 251, 77 So. 841; Racine Tire Co. v. Grady, 205 Ala. 423, 88 So. We have carefully considered the evidence, especially the pictures portraying the streets and scene of the accident, and are of the opinion that it discloses .a condition which the .jury could well find not reasonably safe for travel by automobile in the nighttime in the absence of a guard rail, barrier or adequate lighting. We are further fully persuaded that the most that can be said of the evidence touching appellee’s contributory negligence is that it made a case for the jury. Two drainage pipes ran under 65th Street on the east side of the railroad right of way and emptied into the ditch here involved. These pipes carried the water westwardly from the north and south sides of Division Avenue. At the eastern end of each pipe there was a small ditch, some four or five feet in length. We do not agree with appellant’s insistence that the presence of these small ditches, not mentioned in the claim filed by appellee, rendered said claim insufficient as bo the designation of the place where the injury occurred, nor that there was a variance between the allegations and the proof. Evidence that there were no guards, barriers or warning signals guarding the ditch involved was admissible. Charge 42, if not otherwise faulty, was abstract and properly refused. Before proceeding to the trial of the main case, appellant moved the court to enter a non-suit against appellee unless the complaint was amended by making the Louisville and Nashville Railroad Company, a corporation, a party defendant, thereby attempting to invoke the protection of section 503, Title 37, Code of 1940. Evidence for and against the motion was heard by the court, and the motion was denied. The same motion was made and denied at' the conclusion of the evidence taken on the trial of the main case. City of Birmingham v. Muller, 197 Ala. 554, 73 So. 30. The construction put upon section 503, Title 37, Code of 1940, in the case of City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A.1915F, 797, has been consistently followed, and needs no further comment here. *657 We have carefully examined the evidence touching the question presented, and are to the conclusion that it failed to disclose any liability on the part of the Louisville and Nashville Railroad Company. There was therefore no error in overruling the motion for a non-suit. Appellant’s motion for a new trial was also overruled without error. We have considered the evidence relative to appellee’s injury and cannot say that the verdict of the jury and the judgment rendered thereon is excessive. Finding no error iri the record, the judgment is due to be and is affirmed. Affirmed. All the Justices concur, except BROWN, J., who dissents.