Athey v. Tennessee Coal, Iron & R. Co.

• Decision Date: 14 January 1915
• Docket Number: 865
• Citation: 191 Ala. 646,68 So. 154
• Parties: ATHEY v. TENNESSEE COAL, IRON & R. CO. et al.
• Court: Alabama Supreme Court

68 So. 154

191 Ala. 646

ATHEY v. TENNESSEE COAL, IRON & R. CO. et al.

No. 865

Supreme Court of Alabama

January 14, 1915

Rehearing Denied Feb. 4, 1915

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Action by C.E. Athey, administrator, against the Tennessee Coal Iron & Railroad Company, and the City of Birmingham. Judgment for defendants, and plaintiff appeals. Affirmed.

Burgin Jenkins & Brown, of Birmingham, for appellant.

Percy Benners & Burr and M.M. Ullman, all of Birmingham, for appellees.

SAYRE J.

Appellant, C.E. Athey, who sued as administrator of Eula May Athey, deceased, for the wrongful death of his intestate, lost his suit because the trial court excluded all his evidence and gave the general affirmative charge in favor of defendants, the Tennessee Company and the city of Birmingham. These rulings present the only question to be considered on this appeal.

The Tennessee Company, after using a considerable volume of water in the proper processes of its steelmill, discharged it from its premises upon an open space, over which ran several railroad tracks. This water was hot, dirty, and charged with acids to a degree that appears to have rendered the immersion of any part of the body in it for any considerable length of time very disagreeable, but it was not dangerous to life except as a fluid in which one might drown. It was conducted under the railroad tracks for 200 feet or more in a concrete conduit constructed by the corporate authorities of the city of Ensley, now a part of the city of Birmingham. The testimony and the map offered in evidence show that after leaving this conduit and the vicinity of the railroad tracks this water has been directed through an open ditch two blocks to the south and a block and a half to the east along streets and alleys as shown on the map, to a point midway between Twenty-Seventh and Twenty-Sixth streets on Avenue C, across and under which it is carried by means of a concrete sewer or vitrified tile placed there by the same municipal authority. Thence it passes south and east along alleys and across Twenty-Sixth street to a point near Avenue D midway between Twenty-Sixth and Twenty-Fifth streets and some five or six feet inside the southern property line, where it flows into the unguarded entrance to a pipe which carries it underground to a storm sewer passing along and under the center of the avenue. The course indicated follows, in a general way, the line of natural drainage for surrounding territory, but at the time in question the only water in the ditch issued from the Tennessee Company's premises. The adjacent territory is sparsely built. Three dwellings stand upon the east side of the block contained by Avenues C and D, north and south, and Twenty-Fifth and Twenty-Sixth streets, east and west. These streets and avenues are paved, and at points opposite the intersecting alleys which divide the block into four equal parts, as shown by the map, the sidewalks are so prepared as to permit the passage of vehicles from the streets into the alleys. The unoccupied part of the block, much the larger part, is in a state of nature, except for the rough ditch (five or six feet wide and about three or four feet deep, in which the water flows at the rate of 1 1/2 feet, 170 gallons, a second), which seems to have been dug by municipal authorities to prevent the water from spreading over the surface, and on it grow grass, high weeds, and a few trees. There the children of the neighborhood customarily went to play, as any one might have known who was at pains to investigate. To this block on the occasion in question plainttff's intestate, a child between two and three years of age, had gone in charge of her sister, seven years old, and was playing along the bank of the ditch, about 2,000 feet from the railroad tracks, and about 100 feet above the unguarded entrance to the pipe when she fell in, was carried down into the pipe, and drowned.

Consdering, first, the alleged liability of the Tennessee Company, it appears to us that, in the case as we have endeavored fairly to state it, there is one fact that is conclusive against plaintiff's contention. At the place where this accident occurred the Tennessee Company had no control over the construction, operation, or repair of the ditch. The water had been discharged from this defendant's premises, had been received into, and cared for by, the city's drainage system, so that, on no rule of reason or justice, as we view it, could this defendant be held responsible for its management at a distant point on the premises of another, or in a public place under the jurisdiction and control of the municipal authorities, if it be assumed for the moment that the alley was such a place. Such being the facts, responsibility should be visited upon the person or agency charged with power and duty of maintaining the premises at the place where danger eventuated in disaster. "The power of control is the test of liability." Carmichael v. Texarkana, 116 F. 845, 54 C.C.A. 179, 58 L.R.A. 912.

Neither do we think, on the facts already stated and others to be stated, that the other defendant, the city of Birmingham, can be held to answer. The ditch was in an alley, appearing on the map introduced in evidence. Witnesses referred to it as a paper alley. This alley, in its surroundings, can in no proper or legal sense be considered as a highway designed for general travel, or be governed by rules relating to such highways. Evidently it was designed especially for the use and accommodation of the owners of abutting property, and to give the public the same unqualified rights therein that they have in and to the use of...