City of Birmingham v. Edwards
77 So. 841
Ala.
1918
Check Treatment
GARDNER, J.

Plaintiff (appellee) resided in the city of Birmingham at No. 518 Tuscaloosa avenue in November, 1916. Near her home there was a defect or obstruction in the pavement of the sidewalk caused by the fact that some years previously a portion of the pavement was laid by the property owners on a certain grade, and when subsequently the other portion of the street was paved, under the direction of the authorities of the municipality of AVest End, the former grade was permitted to stand, thus producing at the conjunction of these two pieces of pavement an obstruction in the nature of a step variously estimated by the witnesses from three-fourths to six inches in height.

There is nothing to indicate other than that plaintiff was in normal health and in the full enjoyment of her faculties. This defective condition in the sidewalk had so remained for a number of years, and the evidence of the plaintiff discloses that she was thoroughly familiar with its condition, and had been for some time prior to the accident. Indeed, she testified that she had on various occasions walked on the opposite side of the street to avoid it. On the evening of the accident she had been to Quinn’s drug store, a short distance from her home, on the corner of Tuscaloosa avenue and College street; “that it was between 6 and 7 o’clock, and was just good dark.” Upon her return home from the drug store she stepped off of this place and fell to the ground, striking her knee upon the edge of the pavement, resulting in the injuries complained of.

From the evidence, which appears in the statement of the case, the jury could infer that there was some light at this particular place, whereby pedestrians could see their way, and that plaintiff’s fall was occasioned by her thoughtlessness, inattention, or momentary forgetfulness of the defect in the *254 sidewalk. Her testimony discloses that she was thoroughly familiar with the place, living near it, and had known of the condition for some time, but that (to use the language of the plaintiff) “maybe wasn’t thinking about it at the time.” She further testified that she was walking rapidly at the time, and did not realize that this was the place she had stepped off until after she had fallen to the ground.

Charges 3 and 5, refused to defendant, present the question of momentary forgetfulness on the part of the plaintiff, and failure to use due care to avoid the injuries, such forgetfulness as to proximately contribute to the injury so as to constitute contributory negligence and prevent a recovery. This is a question upon which there is some diversity of opinion, and has given rise to many decisions in various jurisdictions. To review them here would extend this' opinion to undue length. There is an excellent collection of the authorities in a note to Lerner v. Philadelphia, 21 L. R. A. (N. S.) 644-652. See, also, 28 Cyc. 1422-1425.

The Supreme Court of Tennessee recently had this question for consideration in Mayor & Aldermen of City of Knoxville v. Cain, 128 Tenn. 250, 159 S. W. 1084, Ann. Cas. 1915B, 762, wherein, speaking to this question, the court said:

“He knew the danger, but did not keep it in mind. Was his forgetfulness an excuse? We agree that a citizen walking along' a street does not have to keep his eyes on the pavement all the time; that he may presume the city has done its duty; that even when he knows it has not done its duty, and there is a defect of which he has knowledge, he does not have to keep the defect in mind at all times on peril of suffering injury without redress; that if his’ attention is called away by any cause adequate to effect that result, considering human nature in its ordinary aspects, and with regard to its ordinary susceptibilities, he may be excused, and that a jury must judge of the adequacy and reasonableness of such cause as related to the duty of ordinary care on the part of the citizen.”

The opinion then proceeds to enumerate many illustrations whereby the jury could draw the conclusion that the failure on the part of the pedestrian to remember the defect was excused, such as the suddenly communicated news of the illness of a relative or friend; or the absorption of the mind on the condition of a sick relative or friend just visited or about to be visited; or even the hail of an acquaintance across the street, and many other illustrations not necessary to note. The opinion then proceeds:

“But we do not see how one can be excused who admits that there was nothing to divert his attention; that he simply forgot; that is, that he failed to pay attention to his going. Therefore, while it is true, as laid down in Knoxville v. Cox, that the mere fact of a temporary lapse of memory in presence of known danger is not always proof of negligence, yet we think this must be understood with the qualification above indicated; that is, that such lapse roust be shown to have reasonable cause, one which is apart from mere inattention. The duty of every one in presence of a known danger is to give heed, and to walk with care, yet the law recognizes the truth that men are imperfect, that few have adequate command of their faculties, emotions, and propensities, and the power of steady attention, and that most are easily moved from the due balance of mental composure. So it is the exceptions we have mentioned, and others like them, are tolerated out of tenderness to the weakness of human nature. But we do not think we should go the length of holding that every lapse of memory is excusable. 'Such a rule would breed fraud, and put an end to the responsibility of plaintiffs for the exercise of due care, or at least render impossible the enforcement of it when interest prompts deception and weakness yields to it.”

The Supreme Court of Wisconsin in discussing the same situation in Collins v. City of Jamesville, 111 Wis. 348, 87 N. W. 241, 1087, said:

“Some courts have held that if a person knows of a dangerous defect in a sidewalk he is bound at his peril to remember it. * * * But this court, in harmony with the weight of authority, holds to the more reasonable and humane rule that a person may forget the existence of a defect in a street or sidewalk and thereby receive a personal injury, and yet be in the exercise of ordinary care. Cuthbert v. Appleton, 24 Wis. 383; Wheeler v. Westport, 30 Wis. 392; Simonds v. Baraboo, 93 Wis. 40 [67 N. W. 40, 57 Am. St. Rep. 895]; Grites v. New Richmond, 98 Wis. 55 [73 N. W. 322], An examination of those cases will show that the law is that if a person knows of a dangerous defect in a sidewalk and is injured thereby, it is presumed, in the absence of evidence to the contrary, that he remembered it and was negligent, but that the presumption is rebuttable and gives way so readily to explanatory circumstances that any reasonable excuse for the forgetfulness is sufficient to carry the case to the jury on’ the question of the plaintiff’s contributory negligence.”

In Lyon v. Grand Rapids, 121 Wis. 609, 99 N. W. 311, it is held that, where it is shown in an action of this character that the plaintiff knew of the defect in the sidewalk, then contributory fault on her part in not remembering and avoiding the danger is to be presumed, in the absence of satisfactory excuse for forgetting it, but that this presumption yields easily to evidence showing circumstances reasonably calculated to cause a person so circumstanced to momentarily forget the danger. See, also, Robinson v. City of Oconto, 154 Wis. 64, 142 N. W. 125; Kelly v. Blackstone, 147 Mass. 448, 18 N. E. 217, 9 Am. St. Rep. 730. Mr. McQuillin in his work on Municipal Corporations says:

“The rule seems to be that if there is a sufficient cause for the temporaiy forgetfulness, or the attention of the traveler is diverted for the moment, the failure to take notice of the defect is not contributory negligence.” 6 McQuillin on Municipal Corporations, § 2827.

[1] While the exact question here presented does not appear to have been directly treated in this state, yet a review of our authorities would clearly indicate that this court is committed to the view that forgetfulness'and inattention to a known danger does not excuse the negligence of plaintiff.

In Wood v. Richmond, etc., R. R. Co., 100 Ala. 660, 13 South. 552, the opinion concluded with the following language:

*255 “Wo cannot foresee the result if it be once admitted that mere forgetfulness, or inattention, can excuse negligence.”

And. language of similar import is found in the more recent case of Kilby Frog & Switch Co. v. Jackson, 175 Ala. 125, 57 South. 691. See, also, L. & N. R. R. Co. v. Hall, 87 Ala. 708, 6 South. 277, 4 L. R. A. 710, 13 Am. St. Rep. 84,

The foregoing cases do not involve, however, pedestrians upon the streets of a city, and injuries resulting from a defect therein, and the language used, of course, had reference to the general rule. The language used in the opinions in the cases of Mayor & Aldermen of Birmingham v. Tayloe, 105 Ala. 170, 16 South. 576, and Mayor & Aldermen v. Starr, 112 Ala. 98, 20 South. 424, although dictum upon this particular point, would clearly indicate the application of the same rule to pedestrians. These cases, of course, do not present the question as to what may be considered by the jury as excuses for the momentary forgetfulness or inattention. Any one interested will find numerous authorities collated in the note above referred to in 21 L. R. A. (N. S.) beginning on page 648.

[2] From our investigation of the subject, we have concluded that the true rule is, succinctly stated by the Supreme Court of Wisconsin in the case of Lyon v. Grand Rapids, supra, to the effect that when the plaintiff knew of the defect in the sidewalk, then contributory negligence on her part in not remembering and avoiding the danger is to be presumed, in the absence of satisfactory excuse for forgetting. This rule merely places upon the pedestrian, after it appears that he well knew of the defective condition of the sidewalk, and its attending danger, the burden of offering testimony to excuse his forgetfulness or inattention.

[3] In the instant ease, the testimony for the plaintiff clearly discloses that'she knew of the defect and its danger of tripping the pedestrian; and it is clearly to be inferred from her testimony that her fall was due to her inattention or forgetfulness. There is nothing in the evidence offered by the plaintiff by way of excuse for this forgetfulness or inattention. It is argued, however, that the plaintiff stated that it was dark, and she could not see, but this clearly is no excuse for inattention, but. rather the contrary. McQuillin on Municipal Corporations, vol. 6, § 2829; 28 Cyc. 1431.

[4] Charges 3 and 5 must therefore be considered in the light of the evidence in this case. Had there been any evidence tending to show an excuse for the momentary forgetfulness, it may be that these charges would have been condemned as either erroneous or misleading, in failing to make note thereof; 'but, there being no such evidenc&,-4here was no occasion for any reference thereto.

We have examined the oral charge of the court and also the charges at the request of the defendant city of Birmingham, and we do not find where the substance of these charges has been incorporated in either. Other charges along the same line, which we do not deem necessary to specifically treat, were also refused, and it is clear that this particular phase of the question of contributory negligence was not presented to the jury in any of the instructions.

We therefore think that the refusal of these charges must work a reversal of the cause.

The cases of City of Montgomery v. Ross, 195 Ala. 362, 70 South. 634, and City of Birmingham v. Gordon, 167 Ala. 334, 52 South. 430, are not in conflict with the holding here, as to these refused charges; those cases merely holding that the question of contributory negligence, under the facts there disclosed, was one for the consideration of the jury. In the latter case, the opinion clearly shows that there was evidence tending to show due care on the part of plaintiff, notwithstanding her knowledge of the defect. In the instant case, there was no proof on the part of plaintiff tending to show the exercise of care or caution; but the jury could infer that the accident was the result of inattention or forgetfulness.

[5, 6] The courts take judicial notice of the appointment by the chief executive of a notary. Sandlin v. Dowdell, 143 Ala. 518, 39 South. 279, 5 Ann. Gas. 459. This court has further held that where a commission is required to be signed by the appointing power, the issuance of a commission is essential to the completeness of the appointment. Draper v. State, 175 Ala. 547, 57 South. 772, Ann. Gas. 1914D, 301. Notaries public are required to have a commission issued to them. Sections 1469-1471, inclusive, Code 1907.

[7, 8] We therefore judicially know that Mr. Wilkinson, the notary public who took the affidavit of the plaintiff to her statement of claim referred to in the statement of the case, was a notary public whose commission expired in July, 1915. The rule, as to taking judicial notice of commissioned officers of the state, of course, has no application with respect to de facto .officers, as this is a matter of proof. Williams v. Finch, 155 Ala. 399, 46 South. 645.

[9] Under section 12, General Acts 1915, p. 298, the filing of a sworn claim for personal injuries, etc., with the city clerk, or other officer corresponding thereto, within 90 days from the receipt of such injuries, is a condition precedent to the right to maintain a suit therefor.

[10] Of course, the claim in question could not be a sworn, claim within the influence of this provision, unless sworn to before one authorized to administer oaths. As the courts take judicial notice of the fact that the commission of Mr. Wilkinson as a notary public had expired, and he was not therefore a de jure officer, and as the courts do *256 ■not take judicial notice of de facto officers, it was incumbent upon the plaintiff, in this situation, to offer proof to show such authority; that is, that he was in fact a de facto officer. This was not done upon the trial of the cause, but this proof was offered upon motion for a new trial.

[11] While it may be that, under the provisions of section 1473 of the Code of 1907, the evidence offered on the motion for a new trial was sufficient to disclose that Mr. Wilkinson was a de facto notary public at the time he took the plaintiff’s acknowledgment, and that his act in so doing was, within the language of said section, valid and binding as an official act, yet we are of the opinion that this proof, lacking upon the main trial of the cause, could not be supplied upon the motion for a new trial. The argument that this was error without injury presupposes that the testimony had upon the motion for a new trial was not such as could be controverted. This, however, is not correct, and clearly demonstrates that this lack of proof upon .the main trial of the cause could not be so supplemented. While a decision of this question is not necessary to be determined upon this appeal, we have stated this much in view of another trial of the cause.

The question as to whether or not the proof was sufficient as to the filing of the claim with the clerk of the city of Birmingham need not arise upon another trial, and therefore is unnecessary to be here discussed.

We are of the opinion there was no liability on the part'of defendants Lovett and Gates, and we' do not deem this question of sufficient importance for separate treatment here.

[12] Nor was there error in sustaining the objection of the plaintiff to testimony offered by the defendant, to the effect that no complaints of this defect in the sidewalk had reached the street department of the city.

For the error indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, O. J., and McCLELLAN and THOMAS, JJ., concur.