Barber Pure Milk Co. v. Young
| Citation | 81 So.2d 328,263 Ala. 100 |
| Decision Date | 19 May 1955 |
| Docket Number | 6 Div. 716 |
| Parties | BARBER PURE MILK COMPANY v. Willie YOUNG. |
| Court | Supreme Court of Alabama |
Sadler & Sadler, Birmingham, for petitioner.
Abele & Witcher, Birmingham, opposed.
This damage suit was brought in the circuit court of Jefferson County by Willie Young against Barber Pure Milk Company, a corporation hereafter referred to as the petitioner.
Young's claim for damages was based on the averment that the petitioner negligently caused a large quantity of water to flow over and upon the premises which he occupied in the city of Birmingham, thereby doing injury to some of his personal property and making his place of abode less comfortable and convenient.
Young recovered a judgment in the sum of $500, which judgment was affirmed by the Court of Appeals.
Writ of certiorari was issued out of this court on the application of petitioner to review the opinion and judgment of the Court of Appeals.
At the time the writ was issued the writer entertained the view that the Court of Appeals held that the evidence was sufficient to support a finding by the jury that the injury to Young's property from the negligent manner in which the ditch was constructed and that petitioner was liable although all of the work incident to the construction of the ditch was done by an independent contractor.
However, upon a more careful reading of the opinion it appears that the Court of Appeals held that the evidence was sufficient to support a finding that petitioner was negligent in having the ditch constructed according to the plans and specifications submitted to the contractor. There is no language in the opinion of the Court of Appeals expressly stating that the independent contractor was negligent in the manner in which he constructed the ditch and, on the other hand, it appears that the conclusions reached by the Court of Appeals that the affirmative charge was properly refused petitioner by the trial court is based in the main on the following statement: 'As to whether the appellant should reasonably have foreseen that substituting a straight channel with freshly dug and unprotected banks, in lieu of a meandering long existent channel, with a consequent increase in the velocity of the water so concentrated, and with a natural increase in the mud, silt, and debris carried, would result in clogging the culvert into which both the old and the substituted channel were connected, was a question of fact properly submitted to the jury.'
We must look to the opinion of the Court of Appeals for the facts, Barnes v. State, 244 Ala. 597, 14 So.2d 246, and the opinion here under review does not purport to set out all of the facts in the case.
It is well settled that on certiorari we do not examine the evidence shown by the record to see if it supports conclusions of the Court of Appeals on the effect of it. Mutual Savings Life Ins. Co. v. Osborne, 247 Ala. 252, 23 So.2d 867. We cannot therefore say that the Court of Appeals was in error in holding that the trial court...
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Flannagin v. State
...v. Womack, 228 Ala. 70, 71, 151 So. 880; Mutual Savings Life Ins. Co. v. Osborne, 247 Ala. 252, 23 So.2d 867; Barber Pure Milk Co. v. Young, 263 Ala. 100, 81 So.2d 328. Petitioner alleges that five veniremen were improperly challenged for cause by the State because of their alleged general ......
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...lands has been held to be a private nuisance; no express averment or proof of negligence is required. Barber Pure Milk Company v. Young, 263 Ala. 100, 81 So.2d 328 (1955). It has also been held to be a trespass. Rix, supra; Cf. Stout Lumber Co. v. Reynolds, 175 Ark. 988, 1 S.W.2d 77 (1928) ......
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