Sloss-Sheffield Steel & Iron Co. v. Webb

• Decision Date: 20 November 1913
• Citation: 63 So. 518,184 Ala. 452
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. WEBB.
• Court: Alabama Supreme Court

63 So. 518

184 Ala. 452

SLOSS-SHEFFIELD STEEL & IRON CO. v. WEBB.

Supreme Court of Alabama

November 20, 1913

Appeal from Circuit Court, Franklin County; C.P. Almon, Judge.

Action by W.F. Webb against the Sloss-Sheffield Steel & Iron Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6 of the Acts of 1911, p. 450. Reversed and remanded.

The complaint alleged in effect that defendant was engaged in mining iron ore near Russellville, Ala., and maintained a large pond of water by means of an embankment on the lower side of the pond; that the embankment was constructed of earth and so insecurely maintained that it broke (giving the date) and caused a large quantity of water to flow in a street known as Payne street. The plaintiff had rented for the year 1911, for a fixed amount, certain lands, described in the complaint, situated on Payne street, below the pond of defendant, and that the breaking of the dam overflowed the land, and that plaintiff had done valuable work on said land in and about its cultivation before said overflow, which was entirely lost to plaintiff by virtue of said overflow. It is further alleged that, by the breaking of said dam, the lands of plaintiff were injured and the value of his tenancy lost to him.

The original and amended demurrers to the complaint were: First that there was no averment that the dam was negligently constructed or maintained; second, no averment of any act of negligence by the defendant, its servants or agents proximately causing the injury complained of; and, third that it does not appear that the plaintiff's alleged damage was the proximate consequence of the breaking of the dam. The defendant interposed the plea of not guilty and the special plea that the break in the dam was caused by an unprecedented rainfall. This latter plea was stricken on motion of the plaintiff, and the case was submitted on the complaint and the plea of the general issue.

The plaintiff, while being examined as a witness, was asked "Mr. Webb, in your opinion, how much were you damaged by reason of that overflow to your crop?" And the witness answered, "$200," and subsequently stated the nature and character of the crop on the land and the effect that the overflow had on the crop. The court also declined to permit the plaintiff to answer as to the amount of rent per acre he was paying for the land for the year 1911.

Given charge 3 is as follows: "I charge you, gentlemen of the jury, that, unless you are reasonably satisfied from the evidence that plaintiff sustained his alleged damage as a proximate consequence of the breaking of defendant's dam, you must find your verdict for defendant."

The following charges were refused defendant:

"(6) If you believe from the evidence that plaintiff's damage was caused by overflow of both Clear Creek and the overflow by the breaking of defendant's dam, then your verdict should be in favor of defendant.

"(7) It is incumbent on plaintiff to reasonably satisfy you from the evidence that the damage claimed by him was caused exclusively by the breaking of defendant's dam before you are authorized to find a verdict in favor of plaintiff."

Tillman, Bradley & Morrow, of Birmingham, and Almon, Andrews & Peach, of Sheffield, for appellant.

Williams & Jones, of Russellville, for appellee.

ANDERSON J.

The gravamen of plaintiff's action was the causing of damages to his leasehold by an overflow of a pond maintained by the defendant, and which said overflow was caused by the breaking of a dam which had been insecurely built. If the creation of the pond so changed the natural flow of the water as to injure the plaintiff because...