Birmingham, E. & B.R. Co. v. Stagg

• Decision Date: 18 May 1916
• Docket Number: 6 Div. 297
• Citation: 196 Ala. 612,72 So. 164
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM, E. & B.R. CO. v. STAGG.

72 So. 164

196 Ala. 612

BIRMINGHAM, E. & B.R. CO. v. STAGG.

6 Div. 297

Supreme Court of Alabama

May 18, 1916

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

Action by Oscar M. Stagg against the Birmingham, Ensley & Bessemer Railroad Company. Demurrers to counts overruled, and defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911 (Laws 1911, p. 450) § 6. Affirmed.

Forney Johnston and W.R.C. Cocke, both of Birmingham, for appellant.

Beddow & Oberdorfer and Louis Berkowitz, all of Birmingham, for appellee.

MAYFIELD. J.

The action is to recover damages for personal injuries received in consequence of plaintiff's being thrown from a motorcycle which he was riding along one of the public streets in the city of Birmingham.

The allegation and claim of plaintiff is that he was thrown or caused to fall on account of his motorcycle's coming in contact with one of the defendant's rails laid along or across the street and protruding high above the grade of the street, and so forming an unlawful obstruction of the public highway; and in some of the counts the rail is alleged to have constituted a nuisance, in that it was an obstruction of the highway.

Demurrers were interposed to the counts, on the grounds that no breach of duty owing by defendant to plaintiff was shown, and that the facts alleged did not show the rail in question to have been either an unlawful obstruction of the highway or a nuisance. The demurrers were overruled, and the correctness of this ruling is one of the assigned errors most insisted upon by appellant.

The following principles of law are well settled in this state:

"A street railway or street car line upon the streets and highways is not per se a public or a private nuisance nor a new servitude imposed upon the land, for which the owners of a fee are entitled to compensation, and there is no limit to the use of public streets for the purpose of travel so long as the use does not unnecessarily interfere with ordinary travel, and is not a substantial impairment of the private rights of property. Morris v. Montgomery Co., 143 Ala. 246, 38 So. 834." 6 Mayf.Dig. 848.

"Public highways belong to the public from side to side and from end to end. There is no such thing as the rightful private, permanent use of a public highway, and any person who uses a public highway for his own private use commits an indictable public offense, notwithstanding it may be so used with the permission of the municipal authorities. First Nat. Bank of Montg. v. Tyson, 144 Ala. 457, 39 So. 560." 6 Mayf.Dig. 850.

While this court has made a distinction between the rights and duties of the public where the travel is along or over the track of a street railroad laid at grade on a public highway and where the travel is along or over a track not so laid (Jones Case, 153 Ala. 157, 45 So. 177), and has declared different rules of pleading between cases where the injured plaintiff was a trespasser on the track and cases where he was not a trespasser, but was on the track by right, as at a public crossing or traveling along a street on which the track was laid at grade, yet this doctrine finds no room for operation on a demurrer to the complaint in this case; the negligence attempted to be alleged being the obstruction of a public street, and not interference with plaintiff's right to use the street or to cross the track. In other words, there is nothing in this complaint to show, even by inference, that plaintiff was a trespasser, or was wrongfully crossing defendant's track.

A street car company having its rails in or across a public street used as a highway by the public must lay and maintain the rails in such position as to cause as little injury or inconvenience to the public as possible. It is usually required by statutes or ordinances, one or both, that street railways laid along public streets shall be laid and kept at the same grade and level as the street, or as nearly so as practicable. Whether in a given case the rails are so laid or kept as to constitute negligence is usually a question of fact, depending upon the particular circumstances, though there may be cases where the court might say as a question of law whether or not there was negligence per se in this particular, and especially if the rails were laid or kept in violation or without authority of a statute or ordinance to that end. But no such case is presented by this record. Nellis on Street Railways, § 125; Groves v. L.R.R. Co., 109 Ky. 76, 58 S.W. 508, 52 L.R.A. 448; 23 A. & E.Enc.Law, p. 983.

While statutes and ordinances may impose rules for the construction and maintenance of street railways in public streets, and such regulations are usually thus made, yet, independently of such provisions, street railways so using the public streets are bound to so construct and maintain their roads, rails, etc., as that use of the streets by the public shall not be materially impaired or rendered dangerous. Certainly they are bound to do so far as is practicable and consistent with their use of the streets.

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