Alabama Great Southern R. Co. v. Shahan

• Decision Date: 24 June 1897
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. SHAHAN.
• Court: Alabama Supreme Court

22 So. 509

116 Ala. 302

ALABAMA GREAT SOUTHERN R. CO. v. SHAHAN.

Supreme Court of Alabama

June 24, 1897

Appeal from circuit court, Etowah county; James J. Banks, Judge.

Action brought by W. P. Shahan against the Alabama Great Southern Railroad Company. Judgment for plaintiff for $1,500, and defendant appeals. Reversed.

The complaint contains two counts, the substance of which is sufficiently stated in the opinion. To this complaint the defendant demurred upon several grounds, which demurrers were overruled. Thereupon the defendant pleaded the general issue and several special pleas, among which were the following Fifth. "And, for further plea on this behalf, defendant says that said embankment and culverts were constructed more than ten years before the happening of the injuries complained of, and for more than ten years prior to that time had been maintained by defendant in substantially the same condition in regard to the obstruction of said water during said period of ten years." Sixth. "And, for further plea on this behalf, defendant says that the injuries complained of resulted from the maintenance of an embankment and culvert which defendant had maintained for more than ten years in substantially the same condition as at the time of the happening of the injuries complained of, and defendant says it has a prescriptive right to so maintain said culvert and embankment." Ninth. "And, for further plea on this behalf, defendant says that the ground on which plaintiff erected his said store house was at the time of its erection in the time of rainfall subject to overflow, as alleged in plaintiff's complaint; that plaintiff was informed that said ground was thus subject to overflow, but negligently failed to exercise reasonable and ordinary care and prudence in the erection of said store house, and in failing to elevate the floor of said store house above the point that the water had previously reached in time of ordinary high water, and in placing and leaving valuable merchandise within the water at such time; and that the injury complained of was the proximate result of the said contributory negligence of plaintiff." Twelfth. "And, for further plea on this behalf to so much of said complaint as claims damages for injury to and destruction of goods, defendant says that these injuries proximately resulted from the contributory negligence of plaintiff, in this; that, at the time of the happening of the injuries complained of, plaintiff was informed that said ground was subject to overflow, and negligently failed to place said goods above the point that the water had previously reached in time of rainfall, and negligently placed and left said valuable goods within the reach of the water at such times." Fourteenth. "And, for further plea on this behalf to so much of said complaint as claims damages for injury to goods, wares, and merchandise, defendant says that the said injuries complained of were the proximate result of plaintiff's contributory negligence in leaving and exposing said goods, wares, and merchandise to the known peril of overflow at a time when plaintiff knew said goods wares, and merchandise were liable to be so injured, and when, by the exercise of reasonable and ordinary prudence, he could have presented said injuries." Fifteenth. "Comes defendants, and, for answer to plaintiff's complaint, says that the matters and things complained of have been adjudicated in favor of defendant by the judgment of a court of competent jurisdiction, viz. the city court of Gadsden, by judgment of said city court rendered on the 11th day of March, 1895, in a suit therein pending, wherein plaintiff in this suit was plaintiff, and defendant in this suit was defendant. And defendant attaches a copy of plaintiff's complaint in said case, and marks the same ...