City of Birmingham v. Edwards

50 Citing cases

  1. Duffy v. Bel Air Corp.

    481 So. 2d 872 (Ala. 1985)   Cited 15 times
    In Duffy v. Bel Air Corp., 481 So.2d 872; 874 (Ala. 1985), this Court, citing City of Birmingham v. Edwards, 201 Ala. 251, 255, 77 So. 841, 845 (1918), noted that "where a plaintiff is aware of a defect, contributory negligence in not remembering and avoiding the danger will be presumed in the absence of a satisfactory excuse for forgetting."

    Plaintiffs argue that there was a scintilla of evidence on the question of whether defendant breached its duty of care. Defendant, however, maintains that summary judgment was appropriate because there was no disputed material fact concerning Mrs. Duffy's contributory negligence. Where a plaintiff is aware of a defect, contributory negligence in not remembering and avoiding the danger will be presumed in the absence of a satisfactory excuse for forgetting. City of Birmingham v. Edwards, 201 Ala. 251, 255, 77 So. 841, 845 (1918). An invitor is not liable for injuries to an invitee resulting from a danger which was known to the invitee or which should have been observed by the invitee in the exercise of reasonable care.

  2. Houston v. Town of Waverly

    225 Ala. 98 (Ala. 1932)   Cited 30 times
    In Houston v. Town of Waverly, 225 Ala. 98, 142 So. 80, plaintiff sought to recover for injuries received from a fall on a depression in a sidewalk.

    The rule that persons using a public street have a right to presume and to act upon the presumption that the way is reasonably safe for ordinary travel by day or by night, does not apply if the traveler knows of the defect or has reason to believe that it exists. City of Montgomery v. Ross, 195 Ala. 362, 70 So. 634; Vance v. Morgan, 198 Ala. 149, 73 So. 406; Mayor, etc., of Birmingham v. Tayloe, 105 Ala. 170, 16 So. 576; City of Mobile v. Ryser, 217 Ala. 92, 114 So. 903; Lyon v. Grand Rapids, 121 Wis. 609, 99 N.W. 311; 13 R. C. L. 475; Mayor, etc., of Birmingham v. Starr, 112 Ala. 98, 20 So. 424; Racine Tire Co. v. Grady, 205 Ala. 423, 88 So. 337; City of Birmingham v. Edwards, 201 Ala. 251, 77 So. 841; Lerner v. City of Philadelphia, 221 Pa. 294, 70 A. 755, 21 L.R.A. (N.S.) 614. Although plaintiff testified she had no knowledge of the defective condition of the sidewalk, the evidence was such as to give ground for an inference of knowledge on her part. City of Mobile v. Ryser, supra. The measure of care required of an individual who interferes with the normal condition of a sidewalk or street in restoring it is the care that would be exercised under similar circumstances by a reasonably prudent or careful person.

  3. City of Mobile v. Ryser

    114 So. 903 (Ala. 1927)   Cited 6 times

    Defendant's special plea of contributory negligence presented a defense to the suit. City of Birmingham v. Edwards, 201 Ala. 251, 77 So. 841. There being evidence from which the jury could infer plaintiff's knowledge of the defect in the sidewalk, at the time of his injury, and that the injury resulted from his failure to use due care to avoid such defect, under the scintilla rule, defendant's plea of contributory negligence should not have been taken from the jury. Scrimscher v. House, 207 Ala. 334, 92 So. 448; Bevill v. Wilkins (Ala. Sup.) 113 So. 28; Hartford Fire Ins. Co. v. Ingram (Ala. Sup.) 112 So. 424; McMillan v. Aiken, 205 Ala. 35, 88 So. 135.

  4. City of Birmingham v. Andrews

    172 So. 681 (Ala. Crim. App. 1937)   Cited 7 times

    W. J. Wynn and Clarence Mullins, both of Birmingham, for appellant. When the plaintiff knows of a defect in the street or sidewalk, contributory negligence on her part in not remembering and avoiding the danger is to be presumed in the absence of satisfactory excuse for forgetting. City of Birmingham v. Edwards, 201 Ala. 251, 77 So. 841. A municipality has the right to apportion its streets for use by pedestrians and for vehicular traffic. City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797. A pedestrian should use that portion of the street allotted for this particular use. If, in violation of an ordinance, the pedestrian uses or walks in a part of the street apportioned for vehicular traffic, he cannot act upon the assumption that it is free from defects.

  5. City of Montgomery v. Supple

    80 So. 139 (Ala. Crim. App. 1918)   Cited 10 times

    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, 112 Ala. 98, 20 So. 424; Montgomery v. Wright, supra. 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.) 77 So. 841. In that case, the fact that a sidewalk which had a projection or step thereon testified to by some witnesses as being three-fourths of an inch, and by others as much as six inches, appears to have been treated and considered as a matter of course, that such a difference in grade on the sidewalk in a city was a defect, and all the way through the opinion the Supreme Court, speaking through Gardner, J., treats this difference in grade on the sidewalk as being a defect.

  6. Blalock v. Wal-Mart Stores East, LP

    CIVIL ACTION NO. 1:06cv381-MHT (WO) (M.D. Ala. Jun. 11, 2007)

    Admittedly, there is some old case law to suggest that a plaintiff can defeat summary judgment against the affirmative defense of contributory negligence by creating a jury question as to whether the plaintiff had a reasonable excuse for forgetting about the danger of which she was previously aware. See, e.g.,City of Birmingham v. Edwards, 77 So. 841, 845 (Ala. 1918). However, assuming arguendo that this case should be analyzed in terms of an affirmative defense such as contributory negligence, Blalock provides no evidence to support her argument that the five-minute conversation constitutes areasonable excuse for her forgetfulness.

  7. City of Montgomery v. Jones

    277 Ala. 617 (Ala. 1965)   Cited 5 times

    Mitchell v. Helms, 270 Ala. 8, 115 So.2d 664; Supreme Court Rule 45. Charges 9, 14 and 15 were refused without error. Montgomery St. Ry. v. Smith, 146 Ala. 316, 39 So. 757; City of Birmingham v. Edwards, 201 Ala. 251, 77 So. 841, 845. The verdict of the jury in assessing damages and the action of the trial court in affirming the award was proper.

  8. Pankey v. City of Mobile

    35 So. 2d 497 (Ala. 1948)   Cited 18 times

    Vickers, Leigh Thornton, of Mobile, for appellant. Under the evidence in this case plaintiff was not guilty of contributory negligence as a matter of law. It was error to give the affirmative charge for defendant. Cf. Birmingham v. White, 242 Ala. 211, 5 So.2d 464; Montgomery v. Wright, 72 Ala. 411, 47 Am.Rep. 422; Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797; 25 Am.Jur. 757, ยง 465; 43 C.J. 1090, ยง 1856; Birmingham v. Edwards, 201 Ala. 251, 77 So. 841; Houston v. Waverly, 225 Ala. 98, 142 So. 80. Mere knowledge of defect in sidewalk where pedestrian has no practicable alternative route of safety, does not make pedestrian, injured in defect, guilty of contributory negligence as matter of law. Montgomery v. Comer, 155 Ala. 422, 46 So. 761; Dobbins v. West. Union Tel. Co., 163 Ala. 222, 50 So. 919, 136 Am.St.Rep. 69; Birmingham v. Gordon, 167 Ala. 334, 52 So. 430; Montgomery v. Ross, 195 Ala. 362, 70 So. 634; Walker County v. Davis, 221 Ala. 195, 128 So. 144; Birmingham v. Monette, 241 Ala. 109, 1 So.2d 1; Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276; Birmingham Electric Co. v. Jones, 234 Ala. 590, 176 So. 203; 45 C.J. 946, ยง 506. Plea of contributory negligence must allege the act, omission, conduct or behavior relied on as constituting contributory negligence.

  9. City of Birmingham v. White

    5 So. 2d 464 (Ala. 1942)   Cited 7 times

    John S. Foster, of Birmingham, for appellant. One is guilty of contributory negligence as a matter of law when she, while in high heels, knowingly attempts to walk down a driveway at a point where the driveway slopes sixteen inches in two feet, and when she knows that two or three feet to the right of such point there is a method of descent at which the driveway slopes less than one inch per foot. Mayor c. of City of Birmingham v. Starr, 112 Ala. 98, 20 So. 424; Werthner v. Girard Avenue Farmers' Market Co., 218 F. 364, 134 C.C.A. 172; White v. Philadelphia, 223 Pa. 563, 72 A. 856; Glasgow v. Crisp, 111 S.W. 279, 33 Ky.Law Rep. 766; McGinnis v. Hyman, 63 Misc. 316, 117 N.Y.S. 202; Devine v. Fond du Lac, 113 Wis. 61, 88 N.W. 913; Cosner v. Centerville, 90 Iowa 33, 57 N.W. 636; Birmingham v. Edwards, 201 Ala. 251, 77 So. 841; City of Birmingham v. Monette, 241 Ala. 109, 1 So.2d 1, 133 A.L.R. 1020; Hertz v. Advertiser Co., 201 Ala. 416, 78 So. 794, L.R.A. 1918F, 137. The granting of a new trial will be reversed if the undisputed evidence is such that those to whom it is granted cannot succeed.

  10. City of Birmingham v. Monette

    1 So. 2d 1 (Ala. 1941)   Cited 17 times
    In City of Birmingham v. Monette, Ala. Sup., 1 So.2d 1, 4, 133 A.L.R. 1020, it is said, among other things, that: "The rule approved by this Court is that, if 'plaintiff knew of the defect in the sidewalk, then contributory negligence on her part in not remembering and avoiding the danger is to be presumed, in the absence of satisfactory excuse for forgetting. * * *"

    The rule approved by this Court is that, if "plaintiff knew of the defect in the sidewalk, then contributory negligence on her part in not remembering and avoiding the danger is to be presumed, in the absence of satisfactory excuse for forgetting. This rule merely places upon the pedestrian, after it appears that he well knew of the defective condition of the sidewalk, and its attending danger, the burden of offering testimony to excuse his forgetfulness or inattention." City of Birmingham v. Edwards, 201 Ala. 251, 77 So. 841, 845. Such excuse must be something apart from inattention itself, and result from some external circumstance, and not the mere mental absorption upon some other subject. Racine Tire Co. v. Grady, 205 Ala. 423, 88 So. 337; 43 Corpus Juris 1087, note 13; 20 R.C.L. 110 (Negligence) section 96, note 14.