City of Birmingham v. McKinnon , 200 Ala. 111 ( 1917 )

The foregoing opinion was written with a view to the fact, though no specific mention was made of it, that the contest in this court was between appellee and the city of Birmingham alone. The Browns are parties defendant in the judgment, but for some reason best known to themselves they have waived error. We referred to the fact that there was a contradiction in the evidence as to whether the stake at the corner stood on the property line or the inner line of the pavement. It does not appear that the dispute was material to the main question in the case, viz. whether evidence of the fact that other persons fell over the wires or stakes at places other than the corner should have been admitted; but appellee now affirms that there is absolutely no room for entertaining any doubt as to whether the stakes — we referred only to the stake at the corner — were located in the space allotted for and dedicated as a sidewalk or on the property line abutting such space. We may have taken the statement from appellant's brief, as we were authorized to do by rule 10, which provides that:

"The statement [of facts in appellant's brief] will be taken to be accurate and sufficient for decision unless the opposite party in his brief shall make the necessary corrections or additions." 175 Ala. xviii.

But, however that may have been, we have gone again to the record, where we find that the Browns seem to concede in their testimony that the stake at the corner stood in the space between the outer corner of the lot and the inner corner of the paved part of the sidewalk, though they testified that all the stakes were located on what they supposed to be their property line. But this concession did not bind the appellant municipality. A number of witnesses spoke of the sidewalk in a way that left it doubtful whether they meant the sidewalk dedicated to public use or only that part of it that was paved. But the witness Walwork said:

"The stakes were not on the sidewalk, and I should think they were about a foot back from the sidewalk; in fact, I am sure of that." Page 68 of the transcript.

So, then, the evidence on this point was in conflict, though, as we have already said, that fact was not necessary to the conclusion we reached on the admissibility of the evidence of other accidents.

The brief on application for rehearing has been considered with due care. We have found no other point that requires further discussion. The court is of opinion that the application should be denied.