Opinion
3 Div. 36.
March 18, 1965. Rehearing Denied April 22, 1965.
Appeal from the Circuit Court, Montgomery County, Eugene W. Carter, J.
The following charges were given for plaintiff:
1. It is the duty of the City of Montgomery to use reasonable care that no danger shall remain in a public way where people have the right to travel, although it was caused by another.
4. If you are reasonably satisfied from the evidence that at the time of the injury in suit people walked with much frequency along the path where Nellie Jones was injured, I charge you the City of Montgomery was due to exercise due care to look for dangerous places along such path.
These charges were given for defendant Hammond:
IV. I charge you gentlemen of the jury that the violation of an ordinance cannot be the basis of a recovery unless said violation is the proximate cause of the accident.
V. I charge you gentlemen of the jury that if D. H. Hammond, d/b/a Hammond Heating Plumbing Company did violate Chapter 32, Section 16, 17, 18, 19 and 20 of the City of Montgomery, this fact alone would not satisfy the rule of proximate causation.
Charges refused to defendant City are as follows:
9. The Court charges you that if there was sufficient light thrown on the sidewalk in question so that the defect or hole in question would have been revealed and that plaintiff knew of the place in question, or had reason to believe that it did exist, then it was her duty under the law to be on the lookout and watch to detect it and avoid it, and if she failed so to do and thereby contributed proximately to her injury, then she cannot recover.
14. The Court charges you that when a party knows of a defect in a sidewalk, then contributory negligence on his part in not remembering and avoiding the danger is to be presumed, in the absence of satisfactory excuse for forgetting.
15. The Court charges you that when a party knows of a defect in a sidewalk, then contributory negligence on his part in not remembering and avoiding the danger is to be presumed, in the absence of satisfactory excuse for forgetting. And I further charge you that the mere fact it is dark and the party cannot see is no excuse.
16. The Court charges you that Chapter 32, Section 16 of the Montgomery City Code, 1952, reads as follows:
"No person shall make any opening in or upon any street or sidewalk in the city unless he shall first secure permission from the maintenance supervisor of the City. Such permission shall be secured by the person making an application and depositing with the maintenance supervisor a cash amount to be determined by the maintenance supervisor, which amount shall be sufficient to pay any expense which may be incurred by the city in connection with replacing such opening, and particularly the repaving of such opening if such opening be in a paved street or sidewalk; such deposit shall be not less than six dollars and fifty cents for each square yard or fraction thereof of surface of paved streets or sidewalks disturbed, and not less than three dollars for any opening made in any unimproved earth street; in no case shall a less charge be made than for a single yard. Such application shall state the time and manner in which the work shall be done."
17. The Court charges you that Chapter 32, Section 17 of the Montgomery City Code, 1952, reads as follows:
"Any person who makes an opening in any street or sidewalk in the city shall protect, guard, barricade and light such opening and shall retamp and replace the surface in as good condition as is reasonably possible, and shall maintain such opening in a safe condition for four days from the day that the maintenance supervisor's office has been notified that the opening has been closed and replaced and shall be responsible for any and all accidents that may occur by reason of such opening not being properly maintained. Such person shall report within twelve hours to the office of the maintenance supervisor that the opening is closed and replaced."
18. The Court charges you that Chapter 32, Section 18 of the Montgomery City Code, 1952, reads as follows:
"The person obtaining the permit shall make frequent inspections to see that the opening is always in safe condition during the time that he is required to maintain same."
19. The Court charges you that Chapter 32, Section 19 of the Montgomery City Code, 1952, reads as follows:
"No ditch shall be filled to a depth of more than eight inches at any time before it is thoroughly compacted. Each layer shall not exceed the above eight inches, before tamping from the bottom of the trench to the top of the opening. Tamping shall be by some method which shall have been approved by the maintenance supervisor prior to its use."
20. The Court charges you that Chapter 32, Section 20 of the Montgomery City Code, 1952, reads as follows:
"Where pipe is installed in the opening it will be necessary to use material of such finesses so that the entire pipe can be entirely surrounded and compacted when the filled material reached a depth of half the diameter of the pipe. This tamping or roding shall be done with a two by four or other suitable rod or tampter. After the excavation has been backfilled and tamped, then suitable material must be left upon the surface so as to safely carry traffic and with stand weather conditions."
Thos. F. Parker, Parker Salmon, Montgomery, for appellant.
A municipality must have notice of a defect in a sidewalk to be under a duty to remedy it. Jacks v. City of Birmingham, 268 Ala. 138, 105 So.2d 121; City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276; City of Birmingham v. Coe, 31 Ala. App. 538, 20 So.2d 110, Id. 246 Ala. 231, 20 So.2d 113; City of Birmingham v. Martin, 228 Ala. 318, 153 So. 235; Code, Tit. 37, § 502. The duty of a municipality to inspect sidewalks for defects is dependent upon consideration of time of its existence and location. City of Tuscaloosa v. Fair, supra; 63 C.J.S. Municipal Corporations §§ 827, 828. Written jury instructions must be free from obscurity, ambiguity, intricacy and misleading tendencies. Louisville N. R. Co. v. Hall, 87 Ala. 708, 6 So. 277, 4 L.R.A. 710; Tennessee Coal Iron R. Co. v. Barker, 6 Ala. App. 413, 60 So. 486. In an action against two defendants jury instructions requested by one must be free from prejudice to the other. Watt v. Combs, 244 Ala. 31, 12 So.2d 189; 145 A.L.R. 667; 60 A.L.R.2d 524; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22; L.R.A. 1915F, 797. Written jury instructions on abstract principles of law are confusing and misleading. Woodbury v. State, 69 Ala. 242, 44 Am.Rep. 515. The giving of a jury charge on permits required by a municipality for making openings in public thoroughfares is pertinent on the question of notice to the municipality of any defect. 25 Am.Jur., Highways, § 437. One using a municipal sidewalk is under a duty to use reasonable care to discover defects in the sidewalk. Montgomery St. Ry. Co. v. Smith, 146 Ala. 316, 39 So. 757. The issue of contributory negligence must go to the jury where supported by any evidence. Dean v. Mayes, 274 Ala. 88, 145 So.2d 439; Alabama Great So. Ry. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d 1190.
Truman Hobbs, Godbold, Hobbs Copeland, Montgomery, for appellee.
There was no error in giving plaintiff's requested charges 1 and 4. City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276; City of Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160; Jacks v. City of Birmingham, 268 Ala. 138, 105 So.2d 121; Birmingham Water Works Co. v. Walker, 243 Ala. 149, 8 So.2d 827; Birmingham Ry., Light Power Co. v. Jordan, 170 Ala. 530, 54 So. 280; Russell v. Relax-A-Cizor Sales, 274 Ala. 244, 147 So.2d 279. Charges given for defendant Hammond were not erroneous. Wise v. Schneider, 205 Ala. 537, 88 So. 662; Murphree v. Campbell, 266 Ala. 501, 97 So.2d 892; Farr v. Blackman Plumbing Heating Co., 267 Ala. 585, 103 So.2d 777. Refusal of appellant's charges quoting ordinances already read was not error. 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. Central of Georgia Ry. Co. v. White, 175 Ala. 60, 56 So. 574; Louisville N. R. Co. v. Tucker, 262 Ala. 570, 80 So.2d 288; Southern Ry. Co. v. Smith, 268 Ala. 235, 105 So.2d 705; Roberts Const. Co. v. Henry, 265 Ala. 608, 93 So.2d 498; Southern Ry. Co. v. Stallings, 268 Ala. 463, 107 So.2d 873.
This suit was filed in the Circuit Court of Montgomery County by Nellie Jones against the City of Montgomery and D. H. Hammond, doing business as Hammond Heating Plumbing Company, to recover damages for personal injuries which plaintiff sustained when she stepped into a hole in a sidewalk.
Plaintiff's amended complaint consisted of two counts, A and B. In Count A the plaintiff charged each defendant with creating the hole in the sidewalk. In Count B plaintiff charged defendant Hammond with creating the hole and defendant City with failing to remedy it after notice or after the same had existed for such unreasonable time as to raise a presumption of knowledge of the defect. Both counts averred that plaintiff received her described injuries and damages as a proximate result and consequence of the negligence of the defendants.
The defendants filed separate pleas of the general issue in short by consent in the usual form.
The jury returned a verdict in favor of the defendant Hammond and against the defendant City. The City's motion for a new trial having been overruled, it has appealed to this court.
The argued assignments of error present for our consideration the action of the trial court in giving certain written charges requested by the plaintiff and by the defendant Hammond and in refusing certain written charges requested by the defendant City, and the action of the court in overruling the grounds of the motion for new trial which take the point that the verdict is excessive.
Inasmuch as the City does not contend that the evidence was not sufficient to take the case to the jury or that the trial court should have granted a new trial on the ground that "the verdict is contrary to the great weight and preponderance of the evidence * * *" we will not encumber this opinion with a detailed statement of the evidence.
The written charges dealt with herein appear in the report of the case.
Charge 1 given at the request of the plaintiff could have been refused without error because it is abstract. Moore v. Cooke, 264 Ala. 97, 84 So.2d 748. But it states a correct principle of law. City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276; City of Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160. We have said that the giving of an abstract charge does not necessarily require a reversal. Robinson v. Crotwell, 175 Ala. 194, 57 So. 23; Marbury Lumber Co. v. Westbrook, 121 Ala. 179, 25 So. 914; McCutchen v. Loggins, 109 Ala. 457, 19 So. 810; Jacks v. City of Birmingham, 268 Ala. 138, 105 So.2d 121. It is not in conflict with the oral charge or any given charge. One of the criticisms directed at the charge by the defendant City is that it left the jury with the impression that the City had a duty "to use care to repair a defect in a sidewalk without regard to any consideration as to notice of the defect, * * *" True, the duty defined in Charge 1 is based on the responsibility and accountability of the City to remove the danger in a public way only after receiving actual notice of its existence, or after it has remained for such length of time and under such circumstances that the law will infer that the defect ought to have been discovered and remedied. See Jacks v. City of Birmingham, supra. But if the defendant City thought Charge 1 to be misleading or incomplete in the respect indicated, it should have requested an explanatory charge. Jacks v. City of Birmingham, supra.
We do not think the charge assumes a defect in the sidewalk. It simply states a correct abstract principle of law.
Charge 4 given at the request of the plaintiff, although in a somewhat different form, states substantially the same principle as that contained in Charge 1. The giving of that charge does not, in our opinion, constitute reversible error.
The defendant City asserts that the trial court erred to a reversal in giving at the request of the defendant Hammond two charges numbered IV and V. We have held that under the broad language of § 273, Title 7, Code 1940, one of several defendants may assign as error the giving of written charges requested by a codefendant. Watt v. Combs, 244 Ala. 31, 12 So.2d 189, 145 A.L.R. 667. Charges IV and V state a correct principle of law. Murphree v. Campbell, 266 Ala. 501, 97 So.2d 892; Winfrey v. Witherspoon's, Inc., 260 Ala. 371, 71 So.2d 37; Alabama Power Co. v. Buck, 250 Ala. 618, 35 So.2d 355; Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471. We are unable to understand how the giving of these charges could possibly have worked injury to the defendant City. The violation of the ordinance or ordinances was charged to the defendant Hammond and if anyone was prejudiced by the charges in question it was the plaintiff, not the City.
The defendant City was permitted to introduce in evidence and read to the jury §§ 16, 17, 18, 19 and 20 of Chapter 32 of the Montgomery City Code. Then the defendant sought to have the court give its Charges 16, 17, 18, 19 and 20, which merely quote the above-mentioned sections of Chapter 32 of the Montgomery City Code. The court's refusal to give each of those charges is assigned as error. There is no merit in the assignments. While we think the trial court could have given the charges without error, we do not think under the circumstances of this case that their refusal should work a reversal. See Mitchell v. Helms, 270 Ala. 8, 115 So.2d 664.
In Montgomery St. Ry. Co. v. Smith, 146 Ala. 316, 39 So. 757, it was held that Charge 25 in that case, which is very similar to the City's refused Charge 9, should have been given for the reason that if the plaintiff knew of the dangerous excavation in the street, or had reason to believe that it existed, it was her duty, on approaching the place, to look for it and avoid it.
But we do not believe that the refusal of Charge 9 should work a reversal of this case, for there is no evidence pointing to the fact that plaintiff knew of the hole in the sidewalk or had reason to believe that it existed. Plaintiff testified that she did not know of the existence of the hole and there is no evidence to the contrary. Plaintiff did not live in the neighborhood where she was injured, and while the evidence tends to show that she had previously used the sidewalk in question, it also shows that she had not used the sidewalk where the hole had been dug for approximately a year and the hole was created no more than five weeks before plaintiff was injured.
There is another reason why the refusal of Charge 9 should not work a reversal of this cause. It predicates a verdict against the plaintiff upon the existence of certain facts, such as "if there was sufficient light thrown on the sidewalk in question the defect or hole in question would have been revealed," but it does not go further and limit the consideration of such facts to the evidence and reasonable inferences deducible therefrom. We have said that without being predicated upon the evidence, neither the giving nor the refusal of a charge so worded will, as a rule, work a reversal. Walls v. Decatur Fertilizer Co., 215 Ala. 426, 111 So. 214; Shelby County v. Hatfield, 264 Ala. 488, 88 So.2d 842; Parker v. Williams, 267 Ala. 12, 99 So.2d 210.
Charges 14 and 15 requested by the defendant City were refused without error by the trial court for the reason, if for no other, that they are abstract. Motor Terminal Transportation Co. v. Millican, 244 Ala. 39, 12 So.2d 96. As shown above, there is no evidence tending to show that plaintiff knew of the hole in the sidewalk. In the case of City of Birmingham v. Edwards, 201 Ala. 251, 77 So. 841, relied upon by the City, it was pointed out that "* * * the testimony for the plaintiff clearly discloses that she knew of the defect and its danger of tripping the pedestrian; and it is clearly to be inferred from her testimony that her fall was due to her inattention or forgetfulness. * * *" ( 201 Ala. 255, 77 So. 845)
In regard to refused Charges 14 and 15, as well as refused Charge 9, we observe that written charges given at the request of the defendant City afforded it all, if not more than, it was entitled to in regard to the law of contributory negligence as applied to the facts of this case.
The plaintiff, a fifty-year-old colored woman, worked as a domestic servant before her injury. The jury awarded her the sum of $16,000. The defendant asserts that the verdict is excessive and the trial court erred in not granting the City a new trial on the ground of excessiveness.
We will summarize as briefly as possible the evidence as it relates to plaintiff's injury and damage.
Plaintiff was injured on the night of February 26, 1961. She was taken by ambulance to a hospital where she remained thirty-four days. She underwent surgery.
Dr. Elias N. Kaiser, the orthopedic surgeon who performed the three-hour operation, explained it to the jury. He stated that the injury was a comminuted fracture, consisting of several fragments. The knee joint was fractured and the cartilage was so seriously damaged that it had to be removed. This type of injury is extremely painful. The pain continues for a long period of time but is eased to some extent when the leg can be placed in a cast. In plaintiff's case the surgery and cast had to be delayed because of her general physical condition.
Dr. Kaiser testified: "Because of the fracture having gone vertically right into the joint, we had to bring that width back into some normal relationship, and we used a through and through threaded bolt that has washers and nuts on either side." The washers and nuts will remain permanently in the leg unless they cause irritation, in which event surgery could be performed to remove them.
After the operation plaintiff's leg was kept immobile for approximately ten days and under observation for possible hemorrhage or other complications. Ten days after the operation the leg was put in a cast. It remained in the cast for approximately five months. A brace was then applied. Dr. Kaiser testified that in his opinion plaintiff would have to wear the brace permanently because of the lateral instability of the knee from ligament damage. Plaintiff had to use a walker for about nine months in connection with the brace. After she discontinued the use of the walker she began to use crutches and was using them at the time of trial except in her home.
The plaintiff had worked all her life. She has only a fourth-grade education. Plaintiff's weekly earnings were small. She averaged earning only about $22 a week and her meals working as a maid and cleaning woman. Since the accident the evidence shows that she had earned a total of $2.00. Dr. Kaiser also testified that in his opinion plaintiff will develop arthritis in her knee as the result of the injury and that she had a thirty percent total disability.
We will not undertake to analyze and compare the cases relied upon by the defendant City in support of its position that the verdict is excessive, or those relied upon by plaintiff in her brief for the purpose of showing that the verdict is not excessive.
After a careful consideration of the testimony as it relates to the nature of plaintiff's injury, her loss of earning power, and the pain and suffering which she has endured and will no doubt have to endure in the future, we are unwilling to disturb the verdict of the jury. We cannot say that the amount of the verdict is so excessive as to be indicative of prejudice, passion, partiality, corruption or mistake on the part of the jury. Southern Railway Co. v. Stallings, 268 Ala. 463, 107 So.2d 873; Southern Railway Co. v. Smith, 268 Ala. 235, 105 So.2d 705; Roberts Construction Co. v. Henry, 265 Ala. 608, 93 So.2d 498.
The trial court saw and heard the witnesses and it was in a better position than this court to determine whether the damages assessed by the jury were excessive and it declined to disturb the amount of the verdict. Southern Railway Co. v. Smith, supra.
The judgment of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.