Manning v. Atlanta, B. & A. Ry. Co.

• Citation: 206 Ala. 629,91 So. 446
• Decision Date: 17 November 1921
• Docket Number: 7 Div. 194.
• Court: Supreme Court of Alabama
• Parties: MANNING v. ATLANTA, B. & A. RY. CO.

91 So. 446

206 Ala. 629

MANNING v. ATLANTA, B. & A. RY. CO.

7 Div. 194.

Supreme Court of Alabama

November 17, 1921

Appeal from Circuit Court, Clay County; W. L. Longshore, Judge.

Action by Mrs. E. B. Manning against the Atlanta, Birmingham &amp Atlantic Railway Company, for damages for injury to property. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Walter S. Smith, of Lineville, for appellant.

Lackey Pruet & Glass, of Ashland, and Tillman, Bradley & Baldwin and T. A. McFarland, of Birmingham, for appellee.

SOMERVILLE J.

The plaintiff sues to recover damages for injury to her property resulting from the construction and maintenance of a fill by the defendant railroad company, on the street upon which her property abuts.

The main question was upon the effect of the embankment in its interference with the flow of rainwater, and causing it to flow and stand in unnatural quantities on plaintiff's premises; as to which the testimony of many witnesses concurred without conflict that there was such an interference with resulting damage. The jury viewed the premises with the consent of both parties, and under an order of the court.

The viewing by the jury seems to have been loosely and improperly conducted. Parties and witnesses should not, on elementary principles of propriety, be permitted to talk to the jury, or any of its members, during the progress of the viewing, any more than at any other time.

The affidavit of Mr. McFarland, of counsel for defendant, contains the following:

"In addition to the jury, the court visited the premises and also plaintiff's counsel, Mr. Smith, as well as defendant's witnesses, Mr. Greenwood and Mr. Beall and the affiant. The jury viewed the premises, and Mr. Manning and plaintiff's father, Mr. Bell, pointed out to various members of the jury different locations on the premises, and engaged in arguments and discussions with defendant's witnesses, Mr. Greenwood and Mr. Beall. Plaintiff's counsel, Mr. Smith, took a portion of the jury on a tour of inspection over a part of the premises; plaintiff's husband, Mr. Manning, did the same, and plaintiff's father, Mr. Bell, talked with members of the jury with reference to certain boundaries. All this was done in the presence of the court [?] and plaintiff's counsel, as well as counsel for defendant. *** Defendant's witnesses, Mr. Beall and Mr. Greenwood, talked with members of the jury, and

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