Opinion
6 Div. 926.
May 28, 1942. Rehearing Denied June 30, 1942.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
Action for damages for personal injuries by Mrs. W. H. Walker against the City of Birmingham and Birmingham Water Works Company. From a judgment for plaintiff, defendants appeal.
Affirmed.
Count A of the complaint is substantially as follows:
"Plaintiff claims of the Defendants the sum of Ten Thousand and no/100 Dollars ($10,000.00), as damages for that heretofore on, to-wit: the 31st day of March, 1940, the Defendant, Birmingham Water Works Company, a corporation, was a public service corporation engaged in the business of furnishing water to members of the general public in the City of Birmingham, Jefferson County, Alabama, and on, to-wit: said date, while the plaintiff was walking on a public highway across a plot of grass between the sidewalk and the curbstone approximately in front of No. 1226 North 22nd Street in the said City of Birmingham, she stepped and fell into a hole or excavation occupied and filled in part by a water meter box of the Defendant, Birmingham Water Works Company, a corporation, but open and unfilled on one side and immediately adjacent to said water meter box, the said hole was unfilled and consisted of an excavation approximately two and one-half feet deep and a foot and one-half wide, which said hole or excavation remained in said public highway for an unreasonable length of time to-wit: 2 months or more immediately prior to said 31st day of March, 1941, and as a proximate consequence of stepping and falling into said hole or excavation, she was injured and damaged as follows:
* * * * *
"And plaintiff avers that all of her said injuries and damages aforesaid were proximately caused by the negligence of the defendants in this: the defendants negligently failed to maintain the portion of said public highway or street occupied by said water meter box, or immediately adjacent thereto, in a reasonably safe condition for travel of pedestrians on said public highway or street.
* * * * *".
The following charge was refused to the defendant City of Birmingham. "Z. The court charges the jury that if a hole or excavation is not easily observed by reasons of its location and character a municipality would not be charged with knowledge, thereof as early as where the hole or excavation is clearly visible."
London Yancey, Geo W. Yancey, and Fred G. Koenig, Sr., all of Birmingham, for appellant Birmingham Water Works Co.
It was the duty of the water company not to create a defect with respect to that part of the sidewalk adjacent to the meter box; and if it did not create the defect, it was under no duty to remedy or remove it. City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797; City of Birmingham v. Wood, 240 Ala. 138, 197 So. 885. No duty rested on this appellant to keep the sidewalk in repair. Texas Co. v. Williams, 228 Ala. 30, 152 So. 47; 25 Am.Jur. 661, § 366; 41 A.L.R. 217, 93 A.L.R. 803, notes. There was no evidence or inference from evidence that this appellant caused or created the defect. A conclusion that it did so is not permissible, having no basis of fact but of conjecture only. So. R. Co. v. Dickson, 211 Ala. 481, 160 So. 665; McKinnon v. Polk, 219 Ala. 167, 121 So. 539; Koger v. Roden Coal Co., 197 Ala. 473, 73 So. 33. Under the averments of Count A there was no duty on the water company to keep in repair the sidewalk adjacent to its meter box. There is no averment that the company created the defect, and the averment that the company and the city negligently failed to maintain in a reasonably safe condition for travel by pedestrians the portion of the sidewalk immediately adjacent to said meter box was insufficient in connection with all other averments to show a duty owing from the company to the plaintiff. City of Tuscaloosa v. Fair, supra; City of Birmingham v. Carle, supra; City of Birmingham v. Wood, supra; Texas Co. v. Williams, supra; 93 A.L.R. 800, 803, note; 41 A.L.R. 212, 217 note; 25 Am.Jur. 661.
Wm. L. Clark, of Birmingham, for appellant City of Birmingham.
In order for a municipality to be charged with constructive notice of a defect in a public street, the defect must be of such character that it would probably be discovered by the municipality in the exercise of reasonable care. Code 1940, Tit. 37, § 502; City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276; Abbott v. City of Mobile, 119 Ala. 595, 24 So. 565; 43 C.J. 1048; 7 McQuillin, Mun.Corp., 2d Ed., 246-251. A municipality is not an insurer of the safety of public streets, and in absence of actual notice of a defect, proof of circumstances from which it appears that the defect ought to have been known and remedied is essential to actionable liability. Code 1940, Tit. 37, § 502; City of Birmingham v. Martin, 228 Ala. 318, 153 So. 235; City of Tuscaloosa v. Fair, supra; Abbott v. City of Mobile, supra. If the defect, made the basis of the action for personal injuries against the municipality, is not easily observed, the municipality would not be charged with knowledge thereof as early as where the defect is clearly visible. Code 1940, Tit. 37, § 502; City of Tuscaloosa v. Fair, supra; Colby v. Portland, 85 Or. 359, 166 P. 537; Tirendi v. City of Waterbury, 128 Conn. 464, 23 A.2d 919.
Clifford Emond, of Birmingham, for appellee.
When a public utility installs and maintains a water meter box in a public street, it must, independent of statute or contract, use reasonable care to keep that part of the street occupied by its water meter box, including that part related to support of the box, in such condition as to be free from pitfalls and danger to the public. St. Louis S. F. R. Co. v. Jamar, 182 Ala. 554, 62 So. 701; Birmingham, E. B. R. Co. v. Stagg, 196 Ala. 612, 72 So. 164; Ala. Power Co. v. Lewis, 224 Ala. 594, 141 So. 229; City of Reading v. United Traction Co., 202 Pa. 571, 52 A. 106; 3 Dillon, Mun.Corp. 1276; 2 Elliott, Streets Roads, 971; 36 Cyc. 1403-1406; Montgomery St. R. Co. v. Smith, 146 Ala. 316, 39 So. 757; Texas Co. v. Williams, 228 Ala. 30, 152 So. 47; Deming v. Terminal Ry., 169 N.Y. 1, 61 N.E. 983, 88 Am.St.Rep. 521; Houston v. Town of Waverly, 225 Ala. 98, 142 So. 80; Reinauer v. Hackensack Water Co., 92 N.J.L. 8, 105 A. 15; 29 C.J. 679, § 442; 13 R.C.L. 317, § 262; Booth, St. Rys. § 243. The complaint sufficiently states a cause of action and is not subject to demurrer. So. R. Co. v. Posey, 124 Ala. 486, 26 So. 914; Montgomery St. R. Co. v. Smith, supra; Birmingham, E. B. R. Co. v. Stagg, supra; City of Birmingham v. Wood, 240 Ala. 138, 197 So. 885. If a municipal corporation permits a defect in a public street to remain an unreasonable length of time, this would be equivalent to notice of the existence of said defect. Albrittin v. Mayor, etc., 60 Ala. 486, 31 Am.Rep. 46; Montgomery, City Council of, v. Wright, 72 Ala. 411, 47 Am.Rep. 422; City of Birmingham v. Chambless, 222 Ala. 249, 132 So. 313. Charge Z, employing the language "could not be easily seen", is defective in an action against the city for maintaining a portion of a public highway in an unsafe condition, as not qualified with the phrase "by the exercise of reasonable care and diligence." Alabama By-Products Co. v. Rutherford, 239 Ala. 413, 195 So. 210.
This is a suit by appellee against the Birmingham Water Works Company and the City of Birmingham for damages for personal injuries resulting from stepping in a hole in the grass plot of a street in the city extending between the curb of a paved street and the paved portion of the sidewalk.
Objection was made by demurrer of the water works company, and renewed here, that the only count which was submitted to the jury, (A), did not show the breach of a duty owing by it. The pertinent feature of it in that connection, and it is the charge against both defendants, is that "the defendants negligently failed to maintain the portion of said public highway or street occupied by said water meter box, or immediately adjacent thereto, in a reasonably safe condition for travel of pedestrians on said public highway or street." It alleged that "she stepped or fell into a hole or excavation, occupied or filled in part by a water meter box of defendant Birmingham Water Works Company, a corporation; but open and unfilled on one side and immediately adjacent to said water meter box * * * approximately two and one-half feet deep and a foot and one-half wide, which said hole or excavation remained in said public highway for an unreasonable length of time, to-wit, two months."
The facts developed on the trial show the significance of not alleging that there was a meter in the box, and that it was being used to service the supply of water to a customer. Taking the count most strongly against plaintiff on demurrer, we will presume, for the evidence shows, that this was an empty meter box, and had not been used as such for several years. The hole was immediately adjacent to the meter box, exposing some of its side, and was unmistakably dangerous and obvious to one inspecting the meter box.
Is count A sufficient without alleging a failure to act after discovering the dangerous condition, and does it show a duty as to adjacent territory? Taken as it is set up, with the presumptions unfavorable to plaintiff, the breach of duty sought to be charged is negligently failing to maintain that portion of the street immediately adjacent to an unused meter box. It does not allege any extraneous facts, such as the populous nature of the section, nor the amount of pedestrian traffic, nor other circumstances, shown by the evidence having a bearing, but the failure is alleged to have been negligent. If there is a duty on the part of the water works company thus to maintain the adjoining strip of land, the charge that it negligently failed to do so implies notice to it for a sufficient time in which to remedy the defect, or negligence in not discovering the defect. Lord v. City of Mobile, 113 Ala. 360, 21 So. 366; City of Birmingham v. Wood, 240 Ala. 138(7), 197 So. 885.
The allegation is that the hole in which she stepped was in part occupied by the water meter box of the water works company, and therefore that which was immediately adjacent to the portion occupied by the box was a part of the same hole. It is not an allegation that the water works company neglected to maintain a portion of the street not under its supervision, but that there was a hole in which its meter box was located, and that it neglected to maintain that part of the hole immediately surrounding the box or adjacent to it.
We also observe that the complaint does not show that the meter had not been taken out, and service disconnected for some six years prior to the accident. So that we will presume on demurrer that such was the fact. Since the evidence was to that effect, it cannot be a violent presumption. Although we indulge that presumption, we think that it was the legal duty of the water works company to fill the hole in a reasonable time upon finding after an inspection of the box that it was there: also that it was their legal duty upon leaving their property and facilities unused and so situated as this was, to exercise due care to make inspections of it at reasonably frequent intervals. A failure to exercise proper diligence in either aspect would be a negligent breach of duty.
It is unlike the case of City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276, in that the power company did not leave any of its property or facilities at the point in question which would need an inspection or supervision. It at most merely filled up a post hole, and fifteen months later a depression existed there in which plaintiff fell. The only question was whether defendant had been negligent in filling up the hole, and whether by virtue of such negligence the depression came into being. All of this was thought to be too speculative.
But here the water works company left this unused meter box at a place where pedestrians have a right to walk in the exercise of due care; and must use proper diligence to see that it does not become a dangerous pitfall such as here occurred.
The complaint, count A, sufficiently charges such negligence, indulging all reasonable presumptions against plaintiff, and was not subject to the demurrer relied on.
Appellant contends that it was due the affirmative charge. There was a tendency of the evidence to the effect that a hole about as described in the complaint had been beside the unused meter box for a year, gradually getting deeper until it was about two and one-half feet; that the side of the meter box was exposed in part down in the hole; that the top of the box was covered with an iron lid, which was in turn covered in whole or in part with dirt and. grass sod, and "had sunk down." It was near the corner of the intersection of 21st Place and 22d Street, North Birmingham, on the west side of the street. In that corner was an apartment house and next a business house built to the property line on the east. Extending from it toward the street was a two foot space to the paved sidewalk, then the paved sidewalk and then a six foot grass plot to the curb. The meter box had served a business house adjoining the apartment house, but service had been disconnected and the meter taken out of the box in 1934. Regular inspections of it had been made each year, and the last one was on March 13, 1940, and the accident occurred on March 31, 1940. The inspection showed no defect: the inspector testified. But there was much evidence that it was there and had existed for many months. Plaintiff lived across the street and was going for a walk along the sidewalk with her dog under leash, and she followed him as he pulled her on to this grass portion of the street at night. She said she knew nothing of this hole. There was evidence that another lady had fallen in it about a week before, but no report was made to any one in authority as to it. We have no question of contributory negligence presented on this appeal.
Defendant proved that the space extending between those houses and the street was a filled in location of about twenty years standing. It was much lower at 21st Place. That several years before immediately in front of the store opposite the meter box there had been a sink extending to the paved sidewalk, but not across it. No other sinks or holes are shown to have occurred about there.
The jury was authorized to find from the evidence that the inspector of the water works company in making his inspection March 13, 1940, either discovered the hole and did nothing about it, or was negligent in not discovering it.
In either event, it would be negligence, justifying a verdict for plaintiff, upon a further finding that this hole was a part of that in which the meter box sat as placed by the water works company, and so alleged in count A. So that there was in that event the same duty to maintain the hole immediately around the box as the space occupied by it. We will not now undertake to prescribe a duty as to a state of facts not alleged in count A.
There was a verdict and judgment against both the water works company and the city. The water works company appealed, and gave notice to the city to join in the appeal if it saw fit to do so. The city has appeared in response to that notice and assigned errors. The insistence of the city is the refusal of the affirmative charge, refusal of a motion for a new trial and of charge Z.
There was evidence that this hole had existed as long as a year, in a well-settled section of the city, near dwellings and business houses and where children were accustomed to play, and at a place where people have a right to be, exercising due care. The evidence tends to show that an inspection would disclose its presence and dangerous character. The city was due to exercise due care to look for dangerous places situated where people walk with much frequency. Code of 1940, Title 37, section 502; City of Tuscaloosa v. Fair, supra. It was for the jury to determine whether under the circumstances the city was charged with notice of its existence and was negligent in failing to remedy the defective condition.
The law in this connection is well understood. Code of 1940, Title 37, section 502; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797; City of Tuscaloosa v. Fair, supra; City of Birmingham v. Wood, 240 Ala. 138, 197 So. 885; City of Birmingham v. Monette, 241 Ala. 109, 1 So.2d 1, 133 A.L.R. 1020.
We think the circumstances made a jury case against both defendants, and find no reason to reverse the trial judge for overruling the motion of each defendant for a new trial. The amount awarded was not so excessive as to require any change in it.
Requested charge Z for the city invades the province of the jury, and was refused without error.
We have considered all the contentions made by both appellants, but do not think it is necessary to discuss those which we have not mentioned. It is sufficient to say, we think, that no error to reverse is manifest in any of them.
Affirmed as to both appellants.
GARDNER, C. J., and THOMAS and BROWN, JJ., concur.