Birmingham Ry., Light & Power Co. v. Long

• Citation: 59 So. 382,5 Ala.App. 510
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. LONG.
• Decision Date: 07 May 1912
• Court: Alabama Court of Appeals

59 So. 382

5 Ala.App. 510

BIRMINGHAM RY., LIGHT & POWER CO. v. LONG.

Court of Appeals of Alabama

May 7, 1912

Rehearing Denied May 28, 1912.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Mrs. Sarah Long against the Birmingham Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The question asked Lindsay is as follows: "Well, now, I will ask you, Mr. Lindsay, whether or not that cut interfered with or hindered the use of that alley for the purposes of ingress and egress?" The answer was that they could not use it at all scarcely; and the witness proceeded to describe the alley, the cut, and the condition surrounding both. The witness Estelle, being examined for defendant, was asked "Did you make any effort at that time to obtain a showing from the engineering department of the city as to what grade that street or track was to be on when graded?" referring to the street where the excavation had been made.

The following is the charge given to the plaintiff:

(2) "If the jury believe from the evidence that the plaintiff is entitled to recover, she is entitled to recover a verdict for the full amount of all damages she has sustained, as shown by the evidence."

The following charges were refused the defendant:

(2) "If, after considering all the testimony in this case your minds are left in a state of confusion as to whether or not plaintiff is entitled to recover in this action, you must find for the defendant."

(3) "If you believe the evidence in this case, you cannot award the plaintiff any damages for the purpose of punishing the defendant."

(4) "I charge you, gentlemen of the jury, that it was plaintiff's duty to exercise reasonable care to make her damages no greater than possible, and to adopt reasonable means to that end."

Tillman Bradley & Morrow and John S. Stone, all of Birmingham, for appellant.

Allen & Bell, of Birmingham, for appellee.

PELHAM, J.

By a process of elimination in pleading and withdrawals, the five counts of the complaint and amendments thereto were reduced, so that the case was finally submitted to the jury on an issue made under the defendant's pleas to the fifth count of the complaint as amended. Demurrers were filed to this amended count, and the appellant (who was the defendant below) insists that the trial court committed error in overruling these demurrers.

The case made by the fifth count of the complaint, as amended is: That the defendant was a public service corporation; that plaintiff was the owner of a certain lot in the city of Birmingham particularly and definitely described; that the defendant, in the enlargement of its works, etc., excavated or removed a large quantity of earth or dirt on one of the streets of the city at a point where an alley, upon which plaintiff's property abuts, enters or adjoins such street; that the alley, where it enters or joins the street, was closed or greatly obstructed and rendered inaccessible because of such excavation. The allegations, in describing the location of plaintiff's property in relation to the streets, alley, and place of excavation, show that the lot upon which the plaintiff's house is situated is in the block immediately adjoining the street in which the excavation was made, only one 50-foot lot on the corner of the block intervening between plaintiff's lot and this street; and that the alley, access to which was shut off, was in the immediate rear of plaintiff's property and led directly into the street excavated, and cut off plaintiff's communication through the alley with this street.

An interference with the right of access and passage from an abutting alley into an adjoining street is clearly averred in the complaint in such manner as to show a claim for damages, based on an injury different in kind from that suffered by the public in general. It was not necessary to aver that plaintiff had no other means of ingress or egress than that cut off by the excavation, or the user to which the passage into the street, before being cut off, was put. These were matters that might be considered as evidence going to the damage and amount of recovery, but were not necessary in stating a cause of action. The fifth count of the complaint, as amended, was not subject to the demurrers interposed. Meighan v. Birmingham Terminal Co., 165 Ala. 591, 51 So. 775; Birmingham R., L. & P. Co. v. Moran, 151 Ala. 187, 44 So. 152, 125 Am. St. Rep. 21; H. Ave. & Belt R. R. Co. v. Matthews, 99 Ala. 24, 10 So. 267, 14 L. R. A. 462.

We have examined the rulings of the court on the evidence, and find no error committed by the court in passing on the objections of counsel to the admission or exclusion of evidence. The witness Uhl testified that he had lived in the near neighborhood of the location of the property in question for about 20 years, and that the map shown him was "a correct map of the locality where Mrs. Long [the plaintiff] lives." The map was properly admitted.

Clearly the measure of damages was the depreciation of the market value of the property, caused by the excavation in question. H. A. & B. R. R. Co. v. Matthews, 99 Ala. 24, Meighan v. Birmingham T. Co.,

165 Ala. 591, 603, 51 So. 775; 3 Sedgwick on Damages 414. And the questions asked the witnesses Uhl, Smith, and Hutto on the market value of the lot were competent and proper as tending to show the...