Alabama Midland Ry. Co. v. Martin

• Decision Date: 21 December 1893
• Citation: 100 Ala. 511,14 So. 401
• Parties: ALABAMA MIDLAND RY. CO. ET AL. v. MARTIN ET AL.
• Court: Alabama Supreme Court

14 So. 401

100 Ala. 511

ALABAMA MIDLAND RY. CO. ET AL. v. MARTIN ET AL.

Supreme Court of Alabama

December 21, 1893

Appeal from circuit court, Dale county; J. M. Carmichael, Judge.

Trespass by W. E. Martin & Bro. against the Alabama Midland Railway Company and J. M. Brown & Co. From a judgment for plaintiffs defendants appeal. Reversed.

The ground of the demurrer was that the complaint failed to aver that plaintiffs were in possession at the time of the alleged trespass, and that it failed to aver the time when the several trespasses were committed.

Borders & Carmichael, for appellants.

H. L Martin, for appellees.

HARALSON J.

1. This is an action by the plaintiffs against the defendants for alleged trespasses to their lands begun on the 15th of October, 1889, and continued "on divers other days between that and the bringing of this suit," on the 16th of June, 1890. The Alabama Midland Railway Company, one of the defendants, as the proofs show, contracted with the Alabama Terminal & Improvement Company to build and equip its railroad, and the latter company contracted with J. M. Brown & Co. to build the road, and they, in turn, contracted with Louis McLean to build it. It was shown that under these arrangements the Midland Company yielded possession of the road and its building-or that part of it where the injuries complained of in this action are said to have occurred-to the terminal company, and it to Brown & Co., and they to said McLean, and that at no time in the year 1889, nor thereafter, before the 21st of May, 1890, did the Midland Company have possession of said railroad, or were in any manner engaged in the construction of the same, and that said McLean, under contract with said Brown & Co., of date of 14th of December, 1888, undertook the building of the same under the supervision and direction of said Brown & Co. There can be no question that the position of J. M. Brown & Co. towards the Midland Company was that of an independent contractor. The fact that the work was to be done subject to the approval of the chief engineer of the railway company did not alter this relation. For Brown & Co.'s negligence, or for that of their subcontractor, Louis McLean, who did the work for them, under their supervision and direction, the Midland Company is not liable. Scarborough v. Railway Co., 94 Ala. 499, 10 So. 316; Railroad Co. v. Chasteen, 88 Ala. 591, 7 So. 94.

2. The demurrer to the complaint was properly overruled. It alleges the possession and ownership of the land, which the demurrer questions; and the trespass complained of was continuous from day to day, as alleged, between the dates mentioned, so that the injury done on any particular day could not be distinguished from that done on any other day, and what is averred as to the injury to the crops must be regarded as in aggravation of the damages. Gould, Pl. c. 111, §§ 87, 89; Bonnelli v. Bowen, (Miss.) 11 So. 791.

3. It is the general rule, well settled by the decisions of this court, that if a tort be intentionally committed, with force the immediate consequence of which is injury, trespass is the appropriate remedy; that trespass lies to recover damages for an injury which is the direct and primary and inevitable result of gross or reckless carelessness, but if the injury proceeds from mere negligence, and is not the immediate consequence of the tort, and, though proximate, is secondary and consequential, and is not the necessary result of the negligence, an action on the case, and not trespass, is the proper remedy. Railroad Co. v. Harris, 67 Ala. 6; Pruitt v. Ellington, 59 Ala. 454; Railroad Co. v. Webb, 49 Ala. 240; Bell v. Troy, 35 Ala. 184; 3 Brick. Dig. 773. The evidence of the plaintiffs showed that a right of way had been granted by the owner of the lands, under whom plaintiffs were holding possession, to the Alabama Midland Railway Company, over and through the lands described in the complaint, and that said railway was built on said right of way. And the plaintiffs themselves "testified that in constructing the road along the right of way, which had been granted to the railroad...