Lee County v. Yarbrough

• Decision Date: 23 January 1889
• Citation: Lee County v. Yarbrough, 85 Ala. 590, 5 So. 341 (Ala. 1889)
• Parties: LEE COUNTY v. YARBROUGH.
• Court: Alabama Supreme Court

5 So. 341

85 Ala. 590

LEE COUNTY v. YARBROUGH.

Supreme Court of Alabama

January 23, 1889

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge.

Action by J. J. Yarbrough against Lee county to recover damages for the loss of a horse which was killed by falling through a public bridge in the county. The undisputed facts of the case, as agreed on, were thus stated: "Some years prior to the commencement of this suit a bridge across Wacoochee creek in said county, on the public road between Opelika and Columbus, about twelve or fifteen miles from Opelika, was built by the commissioners' court of the county by contract, but no bond was taken from the contractor. A short time before the injury complained of in this case, said bridge was condemned by said court; and one of the commissioners went to the bridge, by direction of the court posted up a notice on a small sapling near the Opelika end of the bridge that the bridge had been condemned by the court and tore up the planks for eight or ten feet, commencing about ten or fifteen feet from the Opelika side; but he placed no obstacle at either end of the bridge, which was about sixty feet long. In order to ford the creek it was necessary to turn to the side near the end of the bridge, go around some fifty feet, then down the stream under the bridge, and then come out on the other side. Plaintiff had a horse worth $125, and stopped all night at a country house between one and two miles from the bridge on the Columbus side. The horse was put in the lot and the gate fastened; but he jumped out of the lot during the night, and attempted to make his way back to Opelika; and he was found next morning lying under the bridge, having fallen through the opening where the timbers had been torn up, so badly injured that it was necessary to kill him. Plaintiff's claim for the loss of this horse was presented to the commissioners' court in proper time and shape, and the court refused to allow it." The defendant demurred to the complaint, which alleged these facts, on the ground that it showed no legal cause of action against the county. The court overruled the demurrer, and its judgment is now assigned as error.

John M. Chilton, for appellant.

R. B. Barnes, for appellee.

STONE C.J.

It is not seriously controverted in this case that, if the horse had been driven or ridden when he fell through the bridge and was destroyed, the county would have been liable. The bridge had been built at county expense, and no guaranty had been exacted from the builder. Code 1876, § 1692; Code 1886, § 1456; Barbour Co. v. Horn, 41 Ala. 114; Schroeder v. Colbert Co., 66 Ala. 137.

The excuses relied on in this case are- First. That the bridge had been somewhat dismantled, and that notice of its unsafe condition had been posted on a tree near one of its approaches. Without intending to reflect on any one, we think the plan adopted for giving warning was not the most effective that could have been taken. It would seem that the approaches to the bridge should have been obstructed or torn up, so that approach would have been barred by night, as well as warned off by day. To persons traveling by night it would seem that the bridge might almost be classed as dangerous.

The second defensive excuse relied on is that the horse had broken from his confinement, and was running at large, with no one to control or direct him. We have no general statute in Alabama requiring cattle or dumb animals to be kept within an inclosure. We have local regulations of this kind, but they are by no means general. The general rule is to fence stock out, not in; and stock running at large are not so far trespassers as to absolve the public from all responsibility for their abuse....