153 So. 235 | Ala. | 1934
The complaint was in one count for simple negligence. Defendant's demurrers were overruled and defendant filed its plea in short by consent.
The description of the place of the accident in the sworn claim was sufficient for the purpose of information to the city of the time and place of the accident — technical accuracy was not required of such sworn statement, only that the city be reasonably and fairly informed of the facts, as to the amount of damages and the location of the place of the injury, so that the city could intelligently investigate the allowance or the rejection of that claim. And this requirement was complied with. There was no error in overruling the demurrers to the complaint. City of Birmingham v. Mauzey,
Counsel next present for review the action of the trial court in refusing to give, at the written request of the defendant, the general affirmative charge. The rule as to such request need not be restated. McMillan v. Aiken,
The appellant contends that it was due the general affirmative charge requested upon the further theory that plaintiff's injury follows, as a matter of law, as a direct result of the violation of a city ordinance (section 5935 (j), Birmingham Code of 1930, and Gen. Acts 1927, p. 375, § 71) forbidding the parking of a car in forbidden proximity to a fire hydrant or "within twenty-five feet from the intersection of curb lines." Courts are not supposed to be ignorant of those facts of which the general public knows, and hence know that automobilists in business and residence portions of cities pull up to points along the curb separating the vehicular driveway from the sidewalk to disembark or to discharge passengers from automobiles; and the duty rests upon such municipalities to maintain their streets, curbs, sewers, and covers thereof, in a reasonably safe condition for persons exercising ordinary care and prudence in so alighting from automobiles, and for drivers and passengers thereof so lawfully using the streets; and failing in such duty, after due notice, a municipality would be liable for such failure of duty or responsible negligence — to use due and ordinary care for the reasonable safety of persons exercising ordinary care and prudence at the time and place, for the protection of persons doing such things as ordinarily exist, or such as may be reasonably expected to occur. City of Bessemer v. Whaley,
Under the facts of the time, place, etc., of parking the car, we cannot say, as a matter of law, that that act alone was the direct proximate cause of plaintiff's injury, which occurred after she had alighted therefrom. The facts of parking and alighting are thus stated by the plaintiff: "When I drove up there on that occasion I stopped the car on the side of the Hill Grocery Company store. * * * When I got out of the car — of course, I wasn't looking for any storm sewers or anything like that. I merely opened the door and reached back to open the door for Mrs. Martin and the babies on the back, and the next thing I knew I was being pulled out of the storm sewer. * * * When I drove the car up it was headed up eastwardly on this 30th Street, or Calera Avenue, they *321 call it. I don't know how far the front of the car had gotten from the opening of this storm sewer. I opened the door,the car door and the door went back and touched the telephone pole. The door opened toward the front of the car. I stepped out of the door which opened toward the right, and looked toward the side of the car door. When I stepped out I couldn't say what part of the street or avenue I stepped on the first step I made. I stepped on to the curb. As to what foot I first put outside so as to step on the ground, or curb, it would be my idea I stepped out on the left foot. * * * You ask me did I step on the street part, or curb part, or iron top, with my left foot: The left foot was on the curb. I don't know whichcurb it was, whether it was westwardly or eastwardly from theopening, that my left foot was on. My best judgment and recollection is that I stepped on the curb of the sidewalk with my left foot; and I stepped just about one step backward, itseemed to me, to open the door for the others to get out of thecar. I was sideways, it seems to me, facing the car, and thestep that I made with my right foot was to the back and side,and it was my right foot that went in. I don't know how far I went down there, down in there, when I first went down, I fell. It was a hard fall, and more of a twisting fall. You ask me did I fall backwards or frontwards or to my side, or how did I fall: The best I recollect, or to my best knowledge, it would be kind of on the right and back. When I first struck I was kind of between this right side and back, and my head was on the curb, I remember that. You ask me if I was on the sewer covering partly too: My whole weight was on the cover. It has my foot hung between the sewer cover and the brick, and I couldn't move so as to get free from that, so they had to get me out from there." (Italics supplied.)
We think no reversible error was committed in submitting the controverted questions of fact to the jury and in refusing the general affirmative instruction requested by the defendant. And in refusing the other charges predicated on plaintiff's violation of the city ordinance, there was no error, as the act of stopping the car as and when she did was not the proximate cause of plaintiff's injury. The charges were misleading and abstract. City Ice Delivery Co. v. Lecari,
The motion for a new trial, among other things, urges that the verdict was grossly excessive. The evidence as to this has been carefully examined, and under the rules of law that obtain, we cannot say that the verdict was excessive.
Finding no reversible error in the record, the judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.