City of Birmingham v. Gordon

MAYFIELD, J. The plaintiff, a woman, sued the city of Birmingham to recover damages for personal injuries alleged to he the result of her falling upon one of the defendant’s sidewalks, which was alleged to be defective. The plaintiff alleges that the defect in the sidewalk was the result of the defendant’s negligence; that such defect caused her to fall or he thrown upon the sidewalk, and thus proximately caused her injuries. The trial resulted in verdict and judgment for plaintiff, from which judgment the city appeals. The complaint stated a cause of action and was not subject to any of the grounds of demurrer assigned. It is the duty of a municipality to keep its sidewalks in'a reasonably safe condition of repair, for the travel of pedestrians upon them; and it is prima facie liable to a person who suffers-an injury on account of its failure to perform this duty.—Albrittin's Case, 60 Ala. 486, 31 Am. Rep. 46; Perkin’s Case, 68 Ala. 145; Wright’s Case, 72 Ala. 411, 47 Am. Rep. 422. The proposed juror, Mingea, was shown to be a policeman of the defendant city — an officer of the municipality — who might be liable or interested in the suit, and he was therefore subject to challenge for cause on this account. There was no error in allowing Dr. Heacock, the physician who treated and attended plaintiff on account of the injuries complained of, to testify that an injury such as plaintiff received was likely to invite diseases [338] such as rheumatism. The witness was an expert on the subject, and the plaintiff was shown to have suffered from rheumatism after the injury, and never before.. Certainly the evidence was not (to repeat) inadmissible or incompetent — the only grounds assigned for excluding it. One injured by falling while walking bn a defective sidewalk is not necessarily guilty of contributory negligence, if he had knowledge or notice of the defect. The mere fact that the plaintiff had knowledge and notice of the defect, such as was shown in this case, was not conclusive evidence of contributory negligence on her part, in walking along such sidewalk. Whether or not she was guilty of contributory negligence, under all the evidence, was properly a question for the jury. She testified that she looked where she stepped, and was thus attempting to -walk carefully over it when she fell.—Starr’s Case, 112 Ala. 98, 20 South. 424; Wright’s Case, 72 Ala. 411, 47 Am. Rep. 422. The given, as well as the refused, charges are set out in the transcript, and the trial court seems to have correctly and fairly charged the jury as to the law applicable to the trial of the case as frequently declared by this court. Charges 11 and 12, requested by the city, were properly refused, because each of the charges predicates a verdict for defendant, upon the hypothesis alone that plaintiff knew of the defective condition of the'sidewalk and, notwithstanding such knowledge, attempted to walk over it, and fell and was injured thereby. As stated above, this alone did not constitute contributory negligence. The plaintiff testified in effect that she was careful while walking over the defective sidewalk, thus rebutting whatever presumption might otherwise arise from her knowingly using the sidewalk. It was not so de [339] fective, or such a pitfall, that it would be, as a matter of' law, negligence to attempt to walk over it. It was shown to be generally used by the public, and to have been so used for a long time. Plaintiff was not required to walk out in the street, or to go down another street, merely because she knew that some of the bricks in the sidewalk were gone, or were loose or worn. She and others were shown to have used it in its then condition, without falling, or being injured thereby. The danger was not so imminent or apparent as to make it contributory negligence to attempt to pass over it. There is no error in the record, and the judgment is affirmed. Affirmed. Dowdell, C. J., and Anderson and Sayre, JJ., concur.