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

• Citation: 66 So. 653,190 Ala. 53
• Decision Date: 07 November 1914
• Docket Number: 877
• Parties: BIRMINGHAM, E. & B.R. CO. v. WILLIAMS.
• Court: Supreme Court of Alabama

66 So. 653

190 Ala. 53

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

No. 877

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by E.M. Williams against the Birmingham, Ensley & Bessemer Railroad company, for damages for permitting property to be destroyed by fire. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals. Affirmed.

The charge made the basis of the sixth assignment of error is as follows: The following charge refused to defendant in writing:

"If you are reasonably satisfied from the evidence that the person in charge of the hose signaled to the motorman to proceed, or that he made a signal which the motorman was justified in regarding as a signal to proceed, and that in response to said signal he allowed the car to proceed in a reasonable manner until the hose was suddenly brought on the track, if you so find, and that the motorman thereupon used all reasonable means in his power to stop the car, your verdict must be for defendant."

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

Smith &amp Wilkinson, of Birmingham, for appellee.

DE GRAFFENRIED, J.

The plaintiff, E.M. Williams, had some personal property stored in a room in the city of Birmingham. The building in which the plaintiff's property was stored was destroyed by fire, and the plaintiff's property was burned up, along with the building. In its efforts to save the building in which the plaintiff's goods were stored, the fire department of the city of Birmingham attached a hose to a fire plug. Between this fire plug and the building the defendant, Birmingham, Ensley & Bessemer Railroad Company, had a car line which was imbedded in and formed a part of a street. The hose, therefore, ex necessitate, crossed the roadbed of the defendant; and the plaintiff claims--and there was evidence sustaining his contention--that while the hose was in this position, placed there for the purpose of conveying water to be used in extinguishing the fire, a car of the defendant was negligently run over or across the hose, cutting a hole in it, or that, if the car was not negligently run over the hose, it was, after it was run upon the hose, negligently permitted to stop and remain upon the hose, and that, by reason of this negligence of the defendant, the firemen were so greatly delayed in getting water to the building that it was destroyed by fire and that thereby, through the negligence of the defendant, the plaintiff was caused to lose his property.

The jury in this case returned a verdict for the plaintiff. To arrive at that verdict it was necessary for them to find that the efforts of the firemen, unimpeded by the negligent act or acts of the defendant's servants in control of the car would have saved from destruction that part of the building in which the plaintiff's property was stored; and, as this was the finding of the jury, their verdict rests upon a substantial legal basis. The reasons for this holding are well stated in Louisville & Nashville Railroad Co. v Scruggs & Echols, 161 Ala. 97, 49 So. 399, 23 L.R.A (N.S.) 184, 135 Am.St.Rep. 114, 18 Ann.Cas. 507, and in Metallic Compression Casting Co. v. Fitchburg Railroad Co., 109 Mass. 277, 12 Am.Rep. 689.

In this connection it may not be inappropriate to say that, in our opinion, subdivision 9, pages 496, 497, and 498, of 29 Cyc., and the authorities cited in the notes to that subdivision, correctly state the law as applied to the evidence upon which, in this case, the plaintiff relied for a recovery.

(1) The rule seems to be well settled in this state that when a complaint shows facts which impose a duty upon the defendant to act, then the negligent failure of the defendant to act in accordance with his duty may be averred in general terms. Western Railway of Alabama v. McGraw, 62 So. 772.

The complaint shows by its allegations that the defendant was under a duty not...