City of Birmingham v. Monette , 241 Ala. 109 ( 1941 )

We are of the opinion the question of contributory negligence was an issue for the jury.

Evidence tended to show one of the elements of danger was that the bricks had worn slick. While plaintiff's evidence discloses she was quite familiar with the sloping conditions, it is not conclusive that she knew the special danger from the slick condition of the bricks. Nor was this defect shown to be so obvious that one walking in a normal way along the sidewalk at this point must be charged as matter of law with knowledge of such extra hazardous condition. The case, therefore, should not be held as matter of law to be within the rule declared in City of Birmingham v. Edwards, 201 Ala. 251, 77 So. 841, but rather within the principles declared in Houston v. Town of Waverly, et al., 225 Ala. 98, 142 So. 80, (see headnotes 14 to 18, inclusive); and in City of Birmingham v. Guy, 222 Ala. 373,132 So. 887, and authorities cited in above decisions.

Affirmed.

GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.

THOMAS and FOSTER, JJ., dissent.