Gillespie v. Woodward Iron Co.

• Decision Date: 10 May 1923
• Docket Number: 6 Div. 805.
• Citation: 209 Ala. 458,96 So. 595
• Parties: GILLESPIE v. WOODWARD IRON CO.
• Court: Alabama Supreme Court

96 So. 595

209 Ala. 458

GILLESPIE v. WOODWARD IRON CO.

6 Div. 805.

Supreme Court of Alabama

May 10, 1923

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by W. H. Gillespie against the Woodward Iron Company for damages to his lands by reason of the obstruction of a creek in consequence of which water was caused to back over and on said lands. From a judgment for defendant, plaintiff appeals. Affirmed.

Stokely Scrivner & Dominick, of Brimingham, for appellant.

Nesbit & Sadler, of Birmingham, for appellee.

SAYRE J.

The suit is for damages for that defendant is alleged to have obstructed the flow of water in Village creek, a natural water, thereby causing an overflow upon plaintiff's property, etc. A jury found with defendant and plaintiff has appealed.

Plaintiff criticises charge 2, given for defendant, on account of the omission of the word "proximately" before "caused" in the concluding part of the charge. The criticism is too nice for practical purposes. The charge states, with adequate completeness, the rule of law sustained by the authorities. Jones v. Tennessee Co., 202 Ala. 382, 80 So. 463; Tennessee Co. v. Hamilton, 100 Ala. 252, 14 So. 167, 46 Am. St. Rep. 48. We do not see that the purpose in hand, viz. to help the jury to an understanding of the issues involved and the applicable law, called for further definition. We are not so much concerned about the meaning which the ingenuity of counsel can, at leisure, wring out of the charge, but must look to the impression it would likely make on the mind of an intelligent, but untrained jury. 1 Randall's Instructions to Juries, p. 763. In this case there was no particular occasion or necessity for the use of the term suggested; but, if a meticulous criticism would suggest the use of it, we are far from willing to order a reversal on that account. If plaintiff felt aggrieved, he should have requested an additional or explanatory charge. See Alabama cases cited on page 764 of Randall's Instructions.

There was no reversible error in charges 4, 5, and 17, given for defendant. These charges are criticized on the ground that they omit reference to the sump wall and dam erected and used by defendant, thus confining plaintiff to the recovery of only such damage as may have resulted from the furnace and slag tracks maintained across the water by defendant. It seems that the trial court charged the jury without specific reference to the sump wall and dam, for the reason that while there is mention of that structure in the evidence, as there was of the even more remote tracks of the Louisville & Nashville Railroad Company and the Birmingham Railway, Light & Power Company across Village creek, there was no evidence from which the court might have reasonably inferred that the jury could find for plaintiff as for the sole or contributory obstruction caused by the structures of omitted reference. Defendant maintained three separate structures across Village creek below plaintiff's property. Of the three the slag track was first across the flow of the creek below p...