City of Mobile v. Webster, 59 So. 185

City of Mobile v. Webster

59 So. 185 | Ala. Ct. App. | 1912

WALKEK, P. J.

Each of the counts of the amended complaint in this case upon which it went to the jury attributed the injury complained of to the defective condition of the sidewalks on the north side of Palmetto street, between Marine and Charles streets, in the city of Mobile, of which condition it was averred that the defendant (appellant here) had notice. These averments as to notice were in reference to a material ingredient of the causes of action alleged, as the statute (Code, § 1273) provides, in reference to an injury attributed to such a cause, that “no city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation * * * unless the said injury or wrong was done or suffered through the neglect, carlessness, or failure to remedy some defect in the streets, alleys, public ways or building, after the same had been called to the attention of the council, or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council.”

Several witnesses were examined in behalf of the plaintiff, whose testimony tended to prove that the sidewalk on the north side of Palmetto street, at a place referred to by the witness as “about 150 feet east of Charles and Marine streets,” was-in bad condition at the time the plaintiff was hurt, and had been in such condition for some time before that. This Avas the only evidence tending to support the averments of the complaint in reference to the defendant having had notice of a defective condition of that sideAvalk. Neither of these witnesses claimed to know anything about the happenings of the *472injury to the plaintiff, or where it occurred. There was no testimony identifying the place at which the injury was sustained, other than that of the plaintiff herself. The following was her statement on this subject: “I was going home. There was some water standing; some water standing on the sidewalk just as I crossed Charles to go on to Marine. I tried to shun that water, not knowing that there was water on ahead of me, and I stepped into what looked like a hole, and this foot slip-, ped, and it just threw me right around. Two of my ribs were broken.” So she locates the place at which she was injured by stating that it was just as she crossed Charles street. This was at the corner or intersection of Charles and Palmetto streets, not at a place about halfway between these two streets, which was the only place at which there was any pretense of evidence tending to show that there was a defective condition of the sidewalk which had existed for such a length of time prior to the time of the plaintiff’s injury as to raise a presumption of knowledge of such defect on the part of the defendant’s council. So it appears that the testimony of the plaintiff’s witnesses was in reference to a defective condition of the sidewalk at One place, and her testimony showed that the injury of which she complains of was sustained at another place. To entitle the plaintiff to recover, it was encumbent upon her to prove, not only that the injury complained of was caused by a defective condition of the sidewalk, but also that it was “done or suffered through the neglect, carelessness, or failure to remedy” such defect “after the same had been called to the attention of the council, or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council.” Even if the plaintiff’s testimony may properly be re*473garded as sufficient to support an inference tliat tire sidewalk, at the place Avkere ske Avas hurt, was in a defective condition at that time, yet there is an absence of any evidence tending to prove that tbe attention of tbe defendant’s council bad been called to sucb defect, or that it bad then existed for sucb a length of time as to charge tbe defendant Avith knoAvledge or notice of it and Avith negligence because of its failure to remedy tbe defect. Tbe evidence offered in support of tbe causes of action alleged was fatally deficient in a material respect. This being true, the court should have given the general affirmative charge requested in behalf of the defendant. Because of the error involved in tbe refusal to give that charge, tbe judgment must be reversed.

Reversed and remanded.