80 So. 139 | Ala. Ct. App. | 1918
Appellee sued appellant, a municipal corporation, in case, and grounded her complaint upon section 1273 of the Code of 1907. She procured a judgment, and from this judgment the present appeal is prosecuted.
Appellant makes but one insistence of error upon this appeal, and that is that as a matter of law an abrupt projection of the pavement in the middle of a paved sidewalk of the kind and character disclosed by the record is not an actionable defect.
The courts should never declare as a matter of law 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.
When facts are disputed, or different minds might arrive at different conclusions from admitted facts, it becomes within the province of juries and not judges to declare the results. Lord v. City of Mobile,
The question of negligence is one of law for the court only, when the facts are such that all reasonable men must draw the same conclusion from them. White Swan Laundry Co. v. Wehrhan (Sup.)
Municipal corporations are due the traveler upon their public thoroughfares the duty of keeping these thoroughfares to the full width in reasonably safe repair for travel by night as well as by day. Birmingham v. Tayloe,
Did the appellant comply with or breach this duty when it suffered to be and remain in its sidewalk an abrupt projection of the pavement of the character disclosed by the record? Reasonable minds might arrive at different conclusions in answering this question, hence a jury problem arose, and the trial court properly so ruled. Birmingham v. Starr,
The facts in the instant case relative to the defects in the sidewalk, as disclosed by the record, are not unlike the facts in the case of City of Birmingham v. Edwards (Sup.)
No errors appear in the record, and the judgment appealed from is affirmed.
Affirmed.
