Illinois Cent. R. Co. v. Elliott

• Citation: 17 Ala.App. 134,82 So. 582
• Decision Date: 21 July 1919
• Docket Number: 6 Div. 512
• Parties: ILLINOIS CENT. R. CO. v. ELLIOTT.
• Court: Alabama Court of Appeals

82 So. 582

17 Ala.App. 134

ILLINOIS CENT. R. CO. v. ELLIOTT.

6 Div. 512

Court of Appeals of Alabama

July 21, 1919

Appeal from Circuit Court, Winston County; T.L. Sowell, Judge.

Action by Mrs. Ada Elliott against the Illinois Central Railroad Company for damages for injury to land by overflow. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The following charges were refused to the defendant:

"(1) The court charges the jury that, even if they should find from the evidence that the plaintiff's storehouse was injured and caused to fall by water flowing from the defendant's tank under or against said storehouse, the amount of damages that the plaintiff would be entitled to recover could not exceed the difference in the value of plaintiff's storehouse and goods just before it fell and just after it fell."

"(5) If the jury find from the evidence that the plaintiff had knowledge that water from the tank would probably cause the injuries complained of, that such injuries could have been prevented by the plaintiff digging a small ditch around the southeast corner of plaintiff's lot, and that plaintiff had such knowledge in time to have caused such ditch to have been dug and prevented the injury by the use of reasonable care, skill, and diligence, adapted to the occasion, then the jury cannot find for the plaintiff for more than the reasonable costs or that would have been necessary to have prevented such injury.

"(6) The court charges the jury that in this case they cannot find a verdict for the plaintiff for more than the reasonable cost of preventing the injury, if the jury find from the evidence that the plaintiff had notice or knowledge that such injury would probably result from the water overflowing the tank in time to have prevented same by reasonable effort or expense.

"(7) The court charges the jury that in this case they cannot find a verdict for the plaintiff for more than it would have reasonably cost the plainntiff to have prevented the storehouse from injury by defendant's tank, if such injuries could have been reasonably prevented by the plaintiff after such knowledge of such probable injury.

"(8) The court charges the jury that if the plaintiff had knowledge that water was coming from the tank upon her property and would probably cause the injuries complained that by the use of reasonable care the plaintiff could have prevented the injury, and that such knowledge came to the plaintiff long enough before the house fell the first time for the plaintiff by the use of reasonable care to have prevented the injuries, then the jury should not return a verdict in favor of the plaintiff for more than the reasonable expenses or costs necessary for the plaintiff to have prevented such injury.

"(9) The court charges the jury that the evidence shows that Arthur Elliott, husband of the plaintiff, was plaintiff's agent as to the property involved in this suit, and that notice or knowledge upon the part of Arthur Elliott as to water flowing from the tank to or upon the plaintiff's lot or under the house was in law notice or knowledge to or upon the part of the plaintiff.

"(10) The court charges the jury that if they find from the evidence in this case that the plaintiff, at and prior to the time her property was injured by water from defendant's tank, had knowledge or notice of such injury and could have been prevented the same by digging or having dug a ditch around or in front of part of the property, then the jury could not find a verdict for the plaintiff for more than it would have cost the plaintiff to have dug such ditch.

"(11) The court charges the jury that, if they are reasonably satisfied from the evidence that but for a storm the house would not have fallen either time, they should return a verdict for the defendant, even if they should be satisfied from the evidence that the defendant's tank overflowed and ran a large amount of water under plaintiff's house.

"(12) The court charges the jury that, if they find from the evidence that a storm or high wind was the proximate or principal cause of the injury complained of, then the jury should find for the defendant, although they should believe from the evidence that water from defendant's tank run under or so near plaintiff's storehouse as to make the ground soft and wet.

"(13) The court charges the jury that they should return a verdict for the defendant, even if they should be reasonably satisfied from the evidence that water from defendant's tank softened or made wet the ground on which the storehouse stood, if the evidence further shows that but for a storm or high wind the house would not have fallen.

"(14) If the jury believe from the evidence that there was more than one cause of the injury, and the evidence does not reasonably satisfy the jury as to which of such causes was the proximate cause of such injury, then the jury will return a verdict for the defendant, although one of such causes was water flowing from defendant's tank."

The suit was commenced August 1, 1916. The first count of the complaint, the only one on which the case went to the jury count 2 having been withdrawn, reads:

"Count 1.

"The plaintiff, Mrs. Ada Elliott, claims of the defendant, the Illinois Central Railroad Company, a corporation, the sum of $2,000, as damages, for that the plaintiff is the owner of the following described lands situated in Winston county, Ala., to wit: Beginning at a point 50 feet south of the southeast corner of lot No. 8 in the Howell addition to the town of Haleyville, Ala., thence run westward 150 feet, thence south 50 feet, thence east 150 feet, thence north 50 feet, to place of beginning, being a part of the northwest quarter

of southwest quarter of section 6, township 10, range 10 west.

"That plaintiff has a house erected thereon. That she is using the same for a storehouse in which is kept goods wares, merchandise, scales, and other articles of value, and the said house has been so used for a long time. That said lot is situated near Haleyville, in Winston county. Ala.

"Plaintiff alleges that defendant owns and operates a railroad yard in Haleyville, Winston county, Ala., which is in close proximity to the lands hereinbefore described; that on the right of way of said railroad yard, and very close to plaintiff's said land, is located a water tank, which is owned and operated by the defendant; that defendant, its agents or servants, does now and has for the past year permitted water from the said tank to overflow and run upon said lands of plaintiff, and to flow directly under her said storehouse, causing the ground under said storehouse and around the pillars thereof to become wet and soft, thereby causing said pillars to give way and permitting said house to fall down, and break up the said goods, wares, merchandise scales, and other articles of value in said house, and causing plaintiff to be out of the use of said house for a long time, and causing said house to greatly depreciate in value because of being greatly damaged and disfigured by said fall, and plaintiff was put to great expense and inconvenience in getting said house erected and put back in place.

"And plaintiff alleges that the said lot is greatly damaged by said water flowing upon it, which has been so flowing for the past year, thereby causing it to greatly decrease in value, so that plaintiff is deprived of the ordinary use for which her aforesaid lands were situated.

"Plaintiff avers that she suffered the aforesaid injuries and damages, by reason of and as a proximate consequence of the defendant, its agents or servants, permitting the water from said tank to overflow and run upon the lands of the plaintiff as aforesaid, and that she suffered the damages as aforesaid."

The defendant demurred to this count of the complaint and also to the second count, assigning, among other grounds, the following:

"(2) It does not appear therefrom that the injuries complained of are the proximate result of the violation of any duty or act of negligence by the defendant or of its servants, or agents, while acting within the scope or course of their employment.

"(3) It does not

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