Alabama M. Ry. Co. v. Coskry

• Decision Date: 09 April 1891
• Citation: 9 So. 202,92 Ala. 254
• Parties: ALABAMA M. RY. CO. ET AL. v. COSKRY.
• Court: Alabama Supreme Court

9 So. 202

92 Ala. 254

ALABAMA M. RY. CO. ET AL. v. COSKRY.

Supreme Court of Alabama

April 9, 1891

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

A A. Wiley and Gardner & Wiley, for appellants.

P O. Harper and W. L. Parks, for appellee.

STONE C.J.

The present suit is against the Alabama Midland Railway Company and the Alabama Terminal & Improvement Company. The complaint of plaintiff is that, in grading streets in the city of Troy Ala., with the view of constructing the Alabama Midland Railway through said city, the streets bordering plaintiff's lot were so excavated as to damage her property materially. The charge is that the street in front of her lot and residence was excavated to the depth of some three feet, and the street in the rear to the depth of seven or eight feet. The tendency of the testimony was that the excavations greatly obstruct the convenient use of plaintiff's property, both front and rear. We have heretofore had occasion to consider our constitutional amendment, incorporated for the first time in our constitution of 1875. City Council v. Townsend, 80 Ala. 489, 2 South. Rep. 155, and 84 Ala. 478, 4 South. Rep 780; Same v. Maddox, 89 Ala. 181, 7 South. Rep. 433. The tendency of the testimony in this record is to show that under each of these rulings the plaintiff has made a case for recovery against some one. The chief question then is, who is liable for the damage? It is severally claimed for each of the defendant corporations that the trial court ruled improperly in reference to their several liabilities. It was proved that one Patterson was the active operator who did the grading complained of; "that said Patterson was a subcontractor under McLane, Strother & Co., who were subcontractors under J. M. Brown & Co., who were subcontractors for the building of said railroad under a contract with the Alabama Terminal & Improvement Company." The bill of exceptions then proceeds to state that "the plaintiff, [Mrs. Coskry,] by permission of the court, introduced oral testimony, against the objection of defendants, and to which an exception was reserved by defendants, that the Alabama Terminal & Improvement Company were under a written contract for the construction of the Alabama Midland Railway." In this the circuit court erred. The suit was against both corporations, the Alabama Midland Railway Company and the Alabama Terminal &amp Improvement Company. The liability of the latter corporation depended on the inquiry whether it had committed the act complained of as a wrong, or aided in committing it, or in causing it to be committed. Whether it had so acted or participated was the pivotal inquiry on which its liability depended. This was a direct presentation of the question,-the most material inquiry on the issue of the liability vel non,-and the rule requires the production of the writing as the best evidence, unless a sufficient excuse is shown for the failure. Proof of reasonable, written notice to produce, or destruction of, the paper or document, or its absence from the state, would let in oral evidence...