160 So. 778 | Ala. Ct. App. | 1935
The first and principal contention of appellant is that the maintenance of the sidewalk in the condition it was in at the time of plaintiff's injury was not, as a matter of law, actionable negligence. To sustain this position we are cited to several decisions of other states, notably the case of Mayor, etc., of City of Meridian v. Crook,
It is stated as a general rule and sustained by many authorities that depressions in the street or sidewalk may give rise to a right of action for injuries caused thereby, if they are of such a nature that danger therefrom might reasonably be anticipated. 43 Corpus Juris 1014.
As was said by Sayre, J., in City of Bessemer v. Whaley,
Of course, the liability does not necessarily follow upon proof of a defect and injury resulting therefrom. The basis of responsibility is negligence in suffering a defect to remain after it should in reason have been repaired and notice to the corporation of the defect, or of facts from which notice may be reasonably inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied, is essential to liability. The foregoing is the rule as stated in City of Bessemer v. Whaley, supra, and sustained. Town of Cullman v. McMinn,
We are of the opinion that the question of the defendant's liability was properly submitted to the jury.
Assignments of error 1, 2, 3, 4, 5, 6, and 9 were argued as a group. Under Supreme Court rule 10 the above disposes of all of said assignments.
The summons was originally issued to this defendant and to Mrs. A. H. Ware, the adjacent property owner. On the trial it was made to appear that the defendant Ware was not served and that the summons as to her was returned not found by the sheriff. Thereupon the plaintiff by leave of the court amended his complaint by striking out the name of Mrs. A. H. Ware. The defendant then moved *391 for a nonsuit, which motion was denied. The summons as to Mrs. Ware having been returned not found by the sheriff, the plaintiff was entitled to his amendment and to proceed with his suit. Code 1923, § 2030.
Refused charge made the basis of assignment of error No. 8 was substantially covered by the court in his general charge. Moreover, under the facts in this case and with the full and explicit charge of the court on the question of plaintiff's contributory negligence, the requested charge was not only not necessary, but tended to mislead the jury.
Under the well-known case of Cobb v. Malone,
Affirmed.