Walker v. Smith, 74 So. 451

Walker v. Smith

74 So. 451 | Ala. | 1917

GARDNER, J.

(1) It is insisted by counsel for appellant that pedestrians have the right to the use of the public streets, and that this right extends to the entire width thereof (City Council of Montgomery v. Reese, 146 Ala. 410, 40 South. 760; Am. Bolt Co. v. Fennell, 158 Ala. 484, 48 South. 97), and that they attempt to limit or restrict plaintiff to the use of only a portion of the sidewalk. The general rule is well recognized and indeed conceded by counsel for appellee. This rule is subject, however, to certain reasonable and necessary limitations, among them the right of an abutting property owner to use the sidewalk in front of his premises when reasonably necessary for *518the purpose of loading or unloading his goods and merchandise. Speaking to this question, the Supreme Court of Illinois in Garibaldi v. O’Connor, 210 Ill. 284, 71 N. E. 379, 66 L. R. A. 73, said: “Abutters upon a public street may use the sidewalk in front of their premises for the purpose of loading and unloading goods, merchandise, or other like articles in which they may deal or use; but the sidewalks belong to the public, and the public primarily have the right to the free and unobstructed use thereof, subject to reasonable and necessary limitations, one of which is the right of an abutting property owner to temporarily obstruct the walk by loading or unloading goods, wares, or merchandise when such obstruction is reasonably necessary. Such obstruction must, however, be both reasonable as to the necessity therefor, and temporary in point of time. The prior and superior right of passage is possessed by the public.”

See, also, Flynn v. Taylor, 127 N. Y. 596, 28 N. E. 418, 14 L. R. A. 556, and cases cited in note thereto; Welsh v. Wilson, 101 N. Y. 254, 4 N. E. 633, 54 Am. Rep. 698; Riseman v. Hayden, 86 Neb. 610, 126 N. W. 288, 29 L. R. A. (N. S.) 707; Kelly v. Otterstedt, 80 App. Div. 398, 80 N. Y. Supp. 1008; 28 Cyc. 864.

(2) The pleas in effect invoke the principle that one, although in the exercise of a right as a pedestrian upon a public street, and although such pedestrian has the right to assume that the streets are in proper condition for public travel and is not required to be on the lookout for obstructions, may nevertheless be guilty of contributory negligence if while walking on the street" he sees such defect and with a knowledge of the dangerous condition walks thereon rather than to choose a safe way which is equally open and obvious.—Mayor, etc., v. Tayloe, 105 Ala. 170, 16 South. 576; Mayor, etc., v. Starr, 112 Ala. 98, 20 South. 424; Lord v. City of Mobile, 113 Ala. 360, 21 South. 366; City of Mobile v. Shaw, 149 Ala. 599, 43 South. 94; Osborne v. Ala. Steel Co., 135 Ala. 571, 33 South. 687; note to Lerner v. Philadelphia, 21 L. R. A. (N. S.) 659, 677. We are of the opinion that the pleas were not subject to the demurrers interposed.

(3) It is further urged, however, that count 3 sought recovery for wanton injury, and that as the pleas of contributory negligence were interposed to each of the said counts, they presented no answer to count 3, and the demurrer taking this point should have been sustained. The sufficiency of said court as one seeking recovery as for willful or wanton injury may be questioned. *519—B. R., L. & P. Co. v. Brown, 150 Ala. 327, 43 South. 342. This, however, we need not determine, for the following reason: The undisputed evidence shows that defendant had temporarily used the sidewalk in transporting some cotton seed meal from his drays to the storeroom on the morning the plaintiff received her injuries, and that this was the only method by which the goods could be placed in the storeroom. It therefore appears without conflict that the defendant made use of the sidewalk only temporarily, and that such use was reasonably necessary. The only cause of action upon which plaintiff could insist, therefore, was the alleged negligence of the defendant in permitting some of the escaped meal to remain on the pavement while the sidewalk was wet.

(4) The defendant insisted that in handling cotton seed meal some of it would necessarily sift through and onto the floor or walk, but that after the storage of the meal the walk had been swept and that the dampness complained of extended only about 2 feet from the edge of the walk. Plaintiff’s evidence tended to show, however, that the entire walk was damp, and that there was some meal scattered on its entire width in front of the store, which caused a slippery condition resulting in her fall thereon. We are of the opinion, and the trial court so charged the jury, that there was no evidence upon which to rest a recovery as for wanton injury. Such being our conclusion, if the assignment of demurrer above referred to should be conceded for the purposes of this case only to be well taken, the error was clearly one without injury, and one on which no reversal could be rested.

Plaintiff requested the affirmative charge on the plea of contributory negligence. After a full examination of the record, we are of the opinion that the evidence was sufficient for the. submission of that issue to the jury. The charges given at the request of the defendant recognize in varying language the principle above stated in reference to the right of an abutting property owner to the temporary use of the sidewalk when reasonably necessary for the transportation of his goods. In the giving of these charges we find no reversible error.

(6) Charge 8, given at defendant’s request, deals with the question of contributory negligence, and it is insisted by counsel that the charge is faulty in failing to state the knowledge or notice to plaintiff of the slippery condition of the walk. The charge uses the language: “And this condition was open and *520apparent to the plaintiff.” Among other definitions of the word “apparent” found in Webster’s International Dictionary is the following: “Clear or manifest to the understanding; plain, evident, obvious, known.” It may be that the use of the word in the charge was misleading, but if it be conceded that the charge had misleading tendencies, it was open to the plaintiff to have asked an explanatory charge in answer thereto. There was no reversible error in giving said charge.

(7) We do not deem it necessary to separately treat other assignments of error dealing with the question of evidence. Some of them relate to the extent of the injury suffered by the plaintiff, as to whether her arm is permanently injured, and questions of like character.

The jury returned a verdict for the defendant and plaintiff was awarded no damages whatever. We are unable to see where any reversible error could be rested on these questions.

(8) Plaintiff testified that after she had fallen a young man seated inside the store came out and helped her up, brushing the meal off her dress, and that she stated to him at the time, “This is -so dangerous.” This testimony was excluded by the court, and we are clear to the view that the above quoted remark was not a part of the res gestee and its exclusion did not constitute error.

The other questions presented by the assignments of error •have been by us carefully considered. They present nothing calling for separate treatment, however. After full consideration of the record, we find no reversible error, and the judgment of the lower court is accordingly affirmed.

Affirmed.

Anderson, C. J., and McClellan and Sayre, JJ., concur.