Smith v. Western Ry. of Alabama

• Decision Date: 12 January 1891
• Citation: 91 Ala. 455,8 So. 754
• Parties: SMITH ET AL. v. WESTERN RAILWAY OF ALABAMA.
• Court: Alabama Supreme Court

8 So. 754

91 Ala. 455

SMITH ET AL. v. WESTERN RAILWAY OF ALABAMA.

Supreme Court of Alabama

January 12, 1891

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

This was an action brought by the appellants, F. A. and L. E Smith, against the Western Railway of Alabama, and sought to recover damages for injury to goods which were shipped under a contract made with a receiving carrier in Baltimore, Md of which defendant was a connecting line, by the consignor of plaintiffs, for the safe transportation of said goods to Opelika, a station on the line of defendant corporation. The defendant pleaded the general issue, and then by several special pleas set up the defense that the injury was caused by an act of God. All the facts necessary to a full understanding of the decision are sufficiently set forth in the opinion of this court.

A & R. Barnes, for appellants.

Harrison & Ligon, for appellee.

COLEMAN J.

The action is to recover damages for an injury to goods, alleged to have been caused by the fault or negligence of the defendant as a common carrier. The principal defense relied on is that the damage resulted from an act of God, without the fault or negligence of the defendant. All the authorities hold that a common carrier is not liable for injuries or damages caused by an act of God, if there is no fault or negligence on its part. 2 Amer. & Eng. Enc. Law, p. 746; Ellet v. Railway Co., 12 Amer. & Eng. R. Cas. 183 and notes; Baltimore & O. R. Co. v. Sulphur S. Ind. School-Dist., 2 Amer. & Eng. R. Cas. 166; Railroad Co. v. Reeves, 10 Wall. 176. As stated in the case of Railway Co. v. Bridges, 86 Ala. 452, 5 South. Rep. 864, railroads "are not bound to provide against unusual or extraordinary floods, such as have never been known to occur previously, and which could not have reasonably been foreseen by competent and skillful persons." See also, opinion of STONE, J., in case of Steam-Boat Co. v. Barclay, 30 Ala. 126. An act of God is a cause which no human prudence or power could prevent or avert. While it is true that no human agency can prevent or stay an act of God, the act itself being that of omnipotence, and irresistible, it is frequently the case that the results or natural consequences of an act of God, by the exercise of reasonable foresight and prudence, may be foreseen and guarded against. Where this can be done by the exercise of reasonable diligence and prudence, a failure to do so would be negligence, and subject the party upon whom this duty devolved to damages, although the original cause was an act of God. Notice of an extraordinary rise at the head of a river might be sufficient to parties engaged in business lower down to expect a proportionate rise, and to prepare for it, dependent more or less upon the suddenness of the rise, and the time after notice, and before the...