Parrish v. Coffee County
| Decision Date | 09 May 1946 |
| Docket Number | 4 Div. 408. |
| Citation | 26 So.2d 267,248 Ala. 103 |
| Parties | PARRISH v. COFFEE COUNTY. |
| Court | Alabama Supreme Court |
Rehearing Denied June 13, 1946.
C. B. Fuller, of Andalusia, for appellant.
J C. Fleming, of Elba, for appellee.
This case involves the liability vel non of a county for alleged defects in a bridge under § 57, Tit. 23, Code of 1940.
On June 18, 1943, appellant's intestate, Mrs. Mary Lula Parrish was a guest on a fishing trip, which included a number of persons. Early in the morning the party in a wagon drawn by two mules crossed a bridge in Coffee County over Pea River known as the Concrete Bridge. Later in the day on their return, they attempted to recross the bridge. One of the mules stepped on a plank in the floor of the bridge, claimed to be defective, with the result that his foot went through the floor of the bridge.
The resulting excitement of the mules caused the rear wheels of the wagon to be backed off the bridge, there being no banister or railing on the bridge at this point. The wagon the mules and the entire party were thrown to the ground 20 to 25 feet below. Plaintiff's intestate was instantly killed.
Trial of the case, which was brought under the homicide act, resulted in a judgment for the defendant on a directed verdict for the defendant. Hence this appeal.
The giving of the affirmative charge is the only assignment of error and there is only one feature of the evidence to which our attention is directed. In giving the affirmative charge, the court said: 'It is the court's opinion that the plaintiff has not made out a case by proving that portion of the bridge causing the accident was built by an independent contractor--and therefore according to the law the defendant is entitled to the charge.' In this way the trial court presented the decisive question on this appeal.
There were tendencies of the evidence as follows: The bridge was constructed in 1914. The steel span of the bridge 119 feet by 12 with floor of concrete was built by the Converse Bridge and Steel Corporation, Chattanooga, Tennessee, under contract with Coffee County. The approaches to this span were built by one Tom Coleman under contract with Coffee County. The county did not take a guaranty in connection with either contract. The western approach was a short approach of one or two spans built of wood. The eastern approach, likewise built of wood, was about 300 feet in length.
The accident took place on the eastern approach about 75 feet from the steel and concrete span. There was a flood in 1929 which damaged the eastern approach, but not the western approach or the steel and concrete span. On November 10, 1930, the commissioners court, as shown by its minutes, adopted a resolution as follows:
There was testimony introduced by the county tending to show that 'the flood picked up the eastern approach to the bridge and set it out to one side.' The eastern approach was completely down and wrecked and the east end thereof washed away, with the result that the bridge could not be crossed. After the flood a short approach of about 100 to 120 feet was built out of the salvaged material on the eastern end of the concrete bridge. This was the condition in 1931. The original approach was built on wood sills. In 1936 the county, without contract, removed this foundation and drove piling under the eastern approach. This piling extended from the concrete and steel span for a distance of 275 or 300 feet. The material used was new material.
Johnnie Davis, witness for the plaintiff, testified in substance that he was living in the vicinity of the bridge at the time of the flood in 1929, that nothing happened to the abutment, that when the water went back down the bridge dropped back down, that the bridge was not gone at all, the flood didn't wash the bridge away and it has been there ever since like it is now, except for some repairs, that the bridge is now on 'fat lightwood piling.'
L. M Nelson, witness for the defendant, testified in substance that he was living near the bridge in 1929 at the time of the flood, that after the flood, the bridge was upset on the lower side down the river and wasn't moved out of place at all, but one tier had been washed away on the far eastern end of the bridge; that a span was built from the bridge out to the ground where the tier had been washed away, that in 1936 the bridge was overhauled; that he worked on the job, that they started at the concrete part and built out to the far end, that the old bridge was on cap sills, all of which was taken out and about 84 piling driven, that all the lumber on the old bridge that would do, was used; that they used some of the old flooring and a few cap sills; that they started from the concrete and worked east; that they tore out before they could build and they drove piling for about 300 feet; that he could not estimate the amount of old flooring used, that the work was done by the county. The witness was asked the following questions, to...
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Coffee County v. Parrish
...by giving the affirmative charge with hypothesis. On the appeal following the judgment of the circuit court was reversed. Parrish v. Coffee County, 26 So.2d 267, 269. It is conceded by the appellant in brief that evidence on the second trial is substantially the same as on the first. The ap......
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