Opinion
6 Div. 524.
June 15, 1939. Rehearing Denied October 12, 1939.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Graham Wingo, of Birmingham, for appellant.
A complaint which avers negligence in general terms and then avers the particular act or acts constituting the alleged negligence, without more, is demurrable unless such act or acts in themselves amount to negligence. Johnson v. Birmingham Ry. Light Power Co., 149 Ala. 529, 43 So. 33; City Ice Delivery Co. v. Goode, 228 Ala. 648, 154 So. 775. Construction or maintenance by a municipality of a concrete sidewalk and concrete bridge across a stream of water, over which bridge the sidewalk extends, with a difference in elevation of 3 1/2 inches between the sidewalk and the bridge, or the failure of a municipality to remove such unevenness between the height of the sidewalk and the height of the bridge, does not constitute negligence on the part of the municipality. Griffin v. Town of Harrison, 268 N.Y. 238, 197 N.E. 265; Eger v. City of New York, 239 N.Y. 561, 147 N.E. 195; Id., 206 App. Div. 718, 200 N.Y.S. 921; 119 A.L.R. 161 note. Where a municipal corporation has exhausted the means at its command for repair of its streets and is without and unable to procure means to effect such repairs, it is not negligent in failing to make such repairs and is not liable to one injured as a proximate result of such defective condition of its streets. 43 C.J. 979, § 1760; Mayor, etc., of City of Birmingham v. Lewis, 92 Ala. 352, 9 So. 243; Lord v. City of Mobile, 113 Ala. 360, 21 So. 366; 15 Ala.Dig., Municipal Corporation, 757 (4); City of Mobile v. Ryser, 217 Ala. 92, 114 So. 903; City of Decatur v. Gilliam, 222 Ala. 377, 133 So. 25. While a traveler on a public street has the right to assume that the sidewalk is in a reasonably safe condition she is not excused from the exercise of her faculties, and when reasonable attention on her part would enable her to avoid an open and obvious danger she cannot recover if she has neglected to exercise that ordinary and reasonable care. Plaintiff's given charge 2 does not correctly state the law. City of Montgomery v. Ross, 195 Ala. 362, 70 So. 634. Where contributory negligence is pleaded and there is evidence to support such defense and the court has not in oral charge instructed as to the law applicable, it is error for the court to refuse a requested charge on the hypothesis of evidence in defendant's favor tending to prove such defense. Alabama Produce Co. v. Smith, 224 Ala. 688, 141 So. 674; City of Mobile v. Ryser, supra; City of Decatur v. Gilliam, supra.
Coleman, Parsons Abele, of Birmingham, for appellee.
The complaint is not subject to the demurrer. Depressions in the streets or sidewalk may give rise to an action for injuries caused thereby. The court should never as matter of law declare that a certain condition constitutes an actionable defect, or fails to constitute an actionable defect, where reasonable minds might arrive at different conclusions in reference thereto. City of Birmingham v. Henderson, 26 Ala. App. 389, 160 So. 778; Mayor, etc., of Birmingham v. Starr, 112 Ala. 98, 20 So. 424; Lord v. City of Mobile, 113 Ala. 360, 21 So. 366; City Council of Montgomery v. Wright, 72 Ala. 411, 47 Am.Rep. 422; 28 Cyc. 1502; White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479; City of Montgomery v. Supple, 16 Ala. App. 565, 80 So. 139. Appellant's effort to show inability to make repairs to streets by reason of having exhausted the means at its command was properly disallowed. Authorities cited do not sustain the contention made. 43 C.J. 979; Mayor, etc., of City of Birmingham v. Lewis, 92 Ala. 352, 9 So. 243; Lord v. City of Mobile, supra. Charge 2 is a correct statement of law. City of Birmingham v. Gordon, 167 Ala. 334, 52 So. 430; Harris v. Town of Tarrant City, 221 Ala. 558, 120 So. 83; Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539, 46 A.L.R. 89; Smoot v. Mayor, etc., of Wetumpka, 24 Ala. 112; City of Anniston v. Hillman, 220 Ala. 505, 126 So. 169; Albrittin v. Mayor, etc., of City of Huntsville, 60 Ala. 486, 31 Am.Rep. 46; McLemore v. City of West End, 159 Ala. 235, 48 So. 663. There was no evidence on the question of contributory negligence, and the requested charges on the subject were properly refused. Carey v. Hughes, 17 Ala. 388; Wilson v. Jackson, Minor, 399; Phillips v. Bradshaw, 167 Ala. 199, 52 So. 662; Jones v. Union Foundry Co., 171 Ala. 225, 55 So. 153; Alabama State Land Co. v. Hogue, 164 Ala. 657, 51 So. 320; Rutledge v. Rowland, 161 Ala. 114, 49 So. 461.
The complaint was not subject to the defendant's demurrer which was properly overruled by the trial court. Mayor and Aldermen of Birmingham v. Starr, 112 Ala. 98, 20 So. 424; City of Birmingham v. Henderson, 26 Ala. App. 389, 160 So. 778.
In our case of Mayor and Aldermen of Birmingham v. Lewis, 92 Ala. 352, 9 So. 243, this court, for perhaps the first time, dealt with the defense of a municipality's financial inability to repair or remove the defects in its sidewalks as a defense to actions of this character, and again in the case of Lord v. City of Mobile, 113 Ala. 360, 21 So. 366. As we understand, the rule, as there announced, was to the effect that the fact that "the corporation though it had levied the full rate of taxation allowed by law, had not the necessary funds in hand to keep the street and sidewalk in proper repair, is no defense to the action, when it is not shown that the corporation had exhausted other means placed in its power by its charter." Again, in the Lord case, supra, the rule invoked is: "Municipal corporations; defective sidewalks; ability to keep in repair. Where a city, by its charter, is empowered and is required to keep its sidewalks in repair, it is liable for personal injuries suffered from the negligent performance of the duty thus enjoined, and in an action for personal injuries resulting from a defect in the sidewalk, it is no defense that the municipality has no funds with which to repair the sidewalk, unless is is shown that all the means at the command of the municipal authorities for the performance of the duty enjoined by the charter had been exhausted."
The evidence sought to be elicited from the witnesses by counsel for defendant did not go far enough in stating a proposed compliance with the rule as to the defendant's inability to have remedied the defect, and the ruling of the trial court was free from error. In other words, the attempt or offer was to show the then inability of the defendant to make repairs and not at the time the defect arose or during all the time between the creation of same and the time of plaintiff's injury. The complaint and proof proceed upon the theory that the defect arose out of the construction and was maintained up to the time of the injury and, from aught appearing, the defendant may have been able to have remedied or removed the same before plaintiff was injured.
There was objection to a part of the closing argument of appellee's counsel and the objection was sustained, and the defendant got the benefit of all that was asked by its counsel.
There was no error in giving plaintiff's charge 2. It asserts the law. City of Birmingham v. Gordon, 167 Ala. 334, 52 So. 430.
Defendant's refused charges, which we number 1 and 2, were refused without error. They attempt to invoke contributory negligence and there was no proof of such negligence on the part of the plaintiff or reasonable inference of same. Birmingham Railway, Light Power Co. v. Oden, 164 Ala. 1, 51 So. 240.
The trial court refused the motion for a new trial without error.
The judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.