Nashville, C. & St. L. Ry. v. Blackwell

Decision Date23 March 1918
Docket Number8 Div. 57
Citation201 Ala. 657,79 So. 129
CourtAlabama Supreme Court

On Rehearing, May 9, 1918

Appeal from Circuit Court, Madison County; R.C. Brickell, Judge.

Action by David S. Blackwell against the Nashville, Chattanooga &amp St. Louis Railway. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Act April 18, 1911, p. 449, § 6. Reversed and remanded.

Sayre Gardner, and Thomas, JJ., dissenting.

Spragins & Speake, of Huntsville, for appellant.

R.E Smith, of Huntsville, for appellee.


The suit was instituted by appellee against appellant railway company, and claimed for damages sustained by plaintiff in and on a roadway leading across defendant's lot whereon was erected its depot, etc., in the city of Huntsville.

The complaint comprised four counts. Demurrer was sustained to count 4, and the affirmative charge was given as to count 2. Demurrers to counts 1 and 3 were overruled, and thereupon issue was joined on the pleas of not guilty and contributory negligence.

The assignments of error as to rulings on the demurrers to counts 1 and 3 are not within the rule announced in Thompson v. N., C. & St. L. Ry., 160 Ala. 590, 49 So. 340; Brent v. Baldwin, 160 Ala. 635, 49 So. 343; Ferrell v. Opelika, 144 Ala. 135, 39 So. 249; Ashford v. Ashford, 136 Ala. 631, 635, 34 So. 10, 96 Am.St.Rep. 82; Pearson v. Adams, 129 Ala. 157, 169, 29 So. 977; Kenan v. Lindsay, 127 Ala. 270, 273, 28 So. 570; AEtna Life Ins. Co. v. Lasseter, 153 Ala. 630, 45 So. 166, 15 L.R.A. (N.S.) 252; Fitts v. Phoenix Co., 153 Ala. 635, 45 So. 150; Western Railway of Ala. V. Arnett, 137 Ala. 414, 34 South, 997; M.J. & K.C.R.R. Co. v. Bromberg, Adm'r, 141 Ala. 258, 37 So. 395. In each of these cases the assignments of error were directed to rulings on several separate pleadings or charges, and not to those on demurrer (containing several grounds) challenging one count or one plea. The separate assignments of error here made are sufficient.

Defendant's counsel thus summarizes the evidence as to the locus in quo on the occasion of the accident:

"Defendant's passenger depot in the city of Huntsville is north of Clinton street, and west of Virginia street, and the depot grounds are bounded on the west by Brown street. and on the north by Holmes street. The railroad tracks run just at the east side of the depot. Just west of the depot, and constituting a part of the depot building is a shed, under which is a driveway defendant's property. This drive way on the occasion in question was being used by appellee, who had been at Orgain & Pollard's coalyard (also on appellant's property), and who was going southwardly towards Clinton street. The driveway extends from Clinton street by way of Orgain & Pollard's coalyard, diagonally, to Brown street, dividing at or about the shed and south of the shed, one branch of it going under the shed and the other branch going outside and west of the shed. A diagram of the locus in quo was offered in evidence," etc.

The reporter will set out the diagram in the statement of facts.

The evidence further showed that at the time of the injury Orgain & Pollard's coal-yard was located upon a part of defendant's depot premises and yards, and that a switch ran from defendant's main line into said yard. Plaintiff testified that people who transacted business with said firm, and the firm's members, used the roadway in question, and that "passing under the shed" was the "most direct way and the most used one" from said coalyard to Clinton street; and that people, including plaintiff, drove under the shed in using said passway. Witness Johnson testified that he had seen a number of people "driving under the shed, using it as a passage," and that it had been used "for some time" in going over to the coalyard of Orgain & Pollard, and that "it is used principally in going to the coalyard from Clinton street, and from Clinton to Holmes and to Brown streets," and that it was "the direct way from the square down Clinton street to Orgain & Pollard's coalyard."

On cross-examination the same witness (Johnson) stated that that was a "short cut" used by people "going to Orgain & Pollard's, and anywhere else they want to go," and that "many other people use it too"; that there was a good roadway "outside the shed just as well as under the shed, and it is plenty wide on the outside for people to go *** without going under the shed; that it was his judgment that "a majority of people go on the outside of the shed"; that it is all open from the shed west to Brown street; that witness thought "from the north side of the passenger depot to Orgain & Pollard's the road is macadamized or improved in some way"; that he had seen some one making improvements on the road and putting rocks over it outside of the shed, but (that) under the shed it was smooth and even. Witness Holmes described the place of the accident, and detailed the use of this road by the public, as follows:

"There is a shed that extends westwardly from the depot, and under that shed vehicles of all kinds pass. I presume it is a public way, as the public seem to use it, I think it is a macadamized road. It has crushed rock around there. I have seen large numbers of people passing through there, and I have been through there quite a number of times myself. People pass along there coming down Clinton street and down to Orgain & Pollard's coalyard, and to the Farmers' Warehouse Company. That condition existed in December, 1915, and for several years past." "In going backward and forward from Clinton street to Holmes street I have driven outside of that shed, and also under it. I have used one way about as much as the other, and have not used either way so much. *** I would guess that the passenger depot is 35 feet wide, east and west, and probably 50 feet long, north and south. It is perhaps twice as long as it is broad. I think the shed I referred to on the west side is about the middle of the building. You can drive up under the shed and alight right on the depot platform. West of the shed there is a rock road or way diagonally from Clinton street northwestwardly to Brown street. I could not say that the use of this and depot building road is any more than that going under the shed. I don't know which is used most. I have gone under the shed as much as I have gone on the outside." "In my opinion, from my observation, Virginia street is used more than Brown street, and more than this way across by Orgain & Pollard's coal yard, and this way diagonally is used more than Brown street. Part of this way that passed under the shed was kept up as well or better than other streets in town, and there is a plain marked roadway from there to Brown street."

The plaintiff, in his own behalf, further testified that he had business that day with Pollard, at Orgain & Pollard's coalyard; that he came on the Holmes street side and from across the railroad by Orgain & Pollard's coalyard; was proceeding along this road or way from said coalyard and passing under the shed--which is the most direct route and the most used one from Clinton street; that a rope was tied across the way at or under the shed, the same being tied, at its respective ends to the depot and the outside of the shed, the shadow of the shed covering the rope; that he could not or did not see the obstruction until the car was striking it, and that his damage was caused by the rope's breaking the windshield of the car and otherwise damaging it, and inflicting personal injury. Defendant's evidence tended to show that its servant, Ewing, placed the obstruction across the road "to prevent people from running under the shed," and that he was instructed so to do by Mr. Yarbrough, station agent for the defendant; that he saw others pass that way the morning he put the rope up; that did not drive into it--"they all went around it"; that he did not place a board on the rope "to indicate that it was there"--"about four feet high above the surface of the ground"; that there was a good roadway west of the shed where a majority of the people went, rather than under the shed.

The station agent's testimony was to the effect that "a man can go on the outside of the shed as comfortably as on the inside of the shed"; that the roadway under the shed was used mainly by persons going to the station for the purpose of embarking on trains; that "people generally use it as a passageway from one street to another; they go under the shed and on the outside. *** They usually pass on the outside. *** People who conduct business with Orgain & Pollard and Orgain & Pollard themselves use this roadway; they have to go under or outside the shed in using it."

This evidence makes a case of implied invitation to the public, as well as to those having dealings with defendant's tenants, Orgain & Pollard, or their coalyard, to proceed by this roadway from street to street and to said place of business.

The principles of law having application to the foregoing facts have often been discussed by the courts.

It has long been the declared rule that an owner of real estate may without protest or objection, permit his premises to be used by the public in such manner, and for such a length of time, as that those of the public who go thereon or so use the same may reasonably presume that the owner will give some warning or notice of any change in the condition thereof, which would render unsafe a continuance of its use; and that if, under such circumstances and with knowledge of the same, the owner should place or leave a dangerous structure, or instrument, or obstruction, or defect, in the way, building, platform or premises so used, from which the owner might reasonably apprehend danger...

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