Central of Georgia Ry. Co. v. Kimber

• Decision Date: 30 October 1924
• Docket Number: 6 Div. 220.
• Citation: 101 So. 827,212 Ala. 102
• Parties: CENTRAL OF GEORGIA RY. CO. v. KIMBER.
• Court: Alabama Supreme Court

101 So. 827

212 Ala. 102

CENTRAL OF GEORGIA RY. CO. v. KIMBER.

6 Div. 220.

Supreme Court of Alabama

October 30, 1924

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for damages by Louvonia Kimber against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6 page 449, Acts 1911. Affirmed.

Nesbit & Sadler, of Birmingham, for appellant.

W. L Acuff, of Leeds, for appellee.

GARDNER J.

The plaintiff in this action (appellee here) owned a home situated on several lots near Leeds, Ala., which were north of and adjoining the right of way of the Central of Georgia Railway Company, and brought suit against said railway for damages to her premises resulting from blasting on said right of way by the railroad. From a judgment for the plaintiff the defendant has prosecuted this appeal.

The complaint as amended consisted of counts A, B, and C, but the court, in its oral charge to the jury, eliminated count C, and it will be here laid out of view. The only argument in support of the demurrer to counts A and B seems to rest upon the theory that, because the home embraced several lots, the damage to each was a separate cause of action, and could not be joined in a single count. This insistence, to our mind, is so clearly without merit as to call for no discussion. The court committed no error in overruling demurrer to these counts.

It was next insisted that the affirmative charge was due the defendant as to these counts, upon the theory that they charged a direct trespass by the corporation itself within the rule of City Delivery Co. v. Henry, 139 Ala. 166, 34 So. 389, and that there was no testimony showing a corporate participation therein. These counts are in case, seeking recovery for consequential damages, as was held in the City Delivery Co. Case, supra, in discussing counts 1 and 3 therein, where counts 2 and 4 were differentiated.

As to count B it is further insisted that the affirmative charge should have been given upon the theory that there can be no recovery for fright alone, and that this was the only element of damage claimed. This count, however, does not claim damages for fright alone, but for the effect which plaintiff's frightened condition had upon her nervous system. Under such a count, the fright charge was but a link in the chain of causation leading to the physical injury to...