Southern Ry. Co. v. Leard

• Decision Date: 19 December 1905
• Citation: 146 Ala. 349,39 So. 449
• Parties: SOUTHERN RY. CO. v. LEARD.
• Court: Alabama Supreme Court

39 So. 449

146 Ala. 349

SOUTHERN RY. CO. v. LEARD.

Supreme Court of Alabama

December 19, 1905

Appeal from Circuit Court, Wilcox County; John Moore, Judge.

"To be officially reported."

Action by Evelyn Leard against the Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This was an action of damages for placing double bents in a creek and diverting the mud and water from the said creek on plaintiff's land. It is alleged that the bents were constructed by the railroad company to support a bridge across the creek over which the tracks ran. Demurrers were sustained to the original complaint, and leave granted to amend. The complaint was not amended at that time. At the next term the cause was continued, and no amended complaint was filed; but at the succeeding term an amendment was made to the complaint on which this issue was tried. There was motion made by defendant for discontinuance of said cause on the ground of the failure for a year to amend after demurrers were sustained. The court overruled the motion. Defendant then filed the following pleas: (1) The general issue. (2) That the defendant, in constructing and keeping in repair the bridge complained of, exercised such care and diligence as a man of caution and prudence would exercise under like circumstances. (3) That the bridge now over Chilatchie creek complained of in said complaint, is constructed according to the best known records of railroad bridge building. (4) That the bridge over Chilatchie creek, described in the complaint is constructed according to the best known methods of railroad bridge building, and constitutes no hindrance to the flow of water down the channel of said creek more than is unavoidable. (5) That the bridge complained of by the plaintiff is supported by two double bents, and the bridge there prior to the bridge complained of was supported by four single bents, and the space for the water flow under the former bridge is much greater than the space under the latter bridge. (6) That timber, brush, and débris were left in the path of Chilatchie creek above said bridge complained of by the plaintiff in her complaint, by the negligence of the plaintiff, to the very great damage of the defendant in being continuously washed down against said bridge, in the sum of $1,000, which is claimed of the plaintiff by the defendant by counter-suit in recoupment in this case. (7) And for answer to the complaint filed on the 7th day of November, 1902 (amended complaint), it pleads the statute of limitations of one year. The eighth plea is set out in the opinion.

To the eighth plea the following demurrers were filed: (1) Plea does not deny that the negligence complained of was not the proximate cause of plaintiff's injury. (2) It is not shown that the plaintiff owed the defendant any duty in the premises. (3) Because it is not shown that the negligence of the plaintiff was the sole and conducive cause of the injury complained of. (4) If the plaintiff was guilty of the negligence complained of, the plea does not deny that the defendant's negligence was not the sole and only cause of the injury complained of. (5) Because said plea fails to negative negligence on part of the defendant, and attempts to set up contributory negligence on part of the plaintiff without averring that the negligence on the part of the plaintiff was the sole and conducive cause of plaintiff's injury.

The following charges were requested by defendant: "(C) The court charges the jury that if Charley Valtz had a lease on said lands for the year 1901, and that said lease was transferred to T. S. Leard, the husband of plaintiff, then they must find the issue in favor of the defendant. (D) The court charges the jury that, if they are reasonably satisfied from the evidence that T. S. Leard was in possession and control of the land involved in this suit during the entire year 1901, then they must find their verdict in favor of the defendant. * * * (G) The court charges the jury that if the plaintiff did not show legal title to the land by chain of title from the government, or by title from some one who was in actual possession of the land, they must find issue in favor of the defendant. * * * (9) The court charges the jury that in the construction and maintenance of railroad bridges common prudence requires the employment of at least ordinary engineering knowledge and skill, to the end of avoiding injury to property which will probably come from the obstruction of natural streams or waterways; but those engaged in such undertaking are not bound to provide against floods in the summer season or other season, when the ground on cultivated land is plowed up and crops growing thereon, of which the usual course of nature affords no premonition, yet they are bound to use ordinary care to build so as not to obstruct, to damage of others, rainfalls such as may reasonably be expected, whether they are likely to be of frequent or rare occurrence."

Miller & Miller and Pettus, Jeffries & Partridge, for appellant.

E. E Taylor, I. I. Canterbury, and Godbold & Jones, for appellee.

DENSON J.

After demurrer was sustained to the complaint and leave granted the plaintiff to amend, she allowed an entire term of the court to pass without making an amendment or offering to amend the complaint. At the term of the court following that at which the demurrer was sustained the cause was continued generally, and at the next term the complaint was amended. "The practice is settled by numerous decisions of this court that, if there be not some positive intervention or direction on the part of a plaintiff, the neglect of the clerk to docket a cause and the failure to take orders therein for several terms will not operate a discontinuance, unless the lapse of time is so great that a presumption of payment or extinguishment would arise." (Italics ours.) Malone & Foote v. Marriott, 64 Ala. 486, and cases there cited; Ex parte State, 71 Ala. 363. Applying the rule above enunciated to the facts of this case, it is clear that the insistence of the appellant that the cause was discontinued is untenable. Moreover, the cause was continued at the spring term, 1902, without objection on the part of the defendant. The advantage of a discontinuance must be claimed at the earliest period. Hayes v. Dunn, 136 Ala. 528, 34 So. 944, and authorities there cited.

The action is case by the plaintiff, Evelyn Leard, against the defendant, Southern Railway Company, to recover damages alleged to have been sustained by the plaintiff on account of the alleged negligent placing of two double bents of a bridge of the defendant in the channel of Chilatchie creek, causing the creek to overflow plaintiff's lands. It is averred in the complaint that the plaintiff owned a large tract of land through which the Chilatchie creek flowed; the creek being the line between the counties of Wilcox and Dallas, and plaintiff's lands being located partly in Wilcox and partly in Dallas county. The lands are particularly described by the government subdivision of sections, and the averments in the complaint show the subdivisions described are contiguous, and, when taken together, form a compact tract. It is shown by the averments of the complaint that the defendant's road runs through said tract of land and crosses Chilatchie creek. The defendant, for its use in operating its road, erected a bridge over said creek. After averring that the defendant operates a railroad over and across the said Chilatchie creek and over and across the aforedescribed lands of plaintiff, the averment of the complaint with respect to the place where the bridge was erected is in this language: "Which said bridge is builded across said creek on lands formerly owned by plaintiff, and which are now used by the defendant as a roadbed for the operation of its aforesaid railroad." Then immediately follows this averment: "Plaintiff avers that the said bridge builded by the defendant on her said lands, and over the said Chilatchie creek, is the first bridge owned by the defendant north of Alberta, Ala., and is known as 'Sixteen Eight.' " It is also averred in the complaint that the plaintiff is the owner of the lands "both above and below the bridge builded by the defendant as aforesaid." Construing the averments of the complaint together, we think the ownership of the lands in the plaintiff and the location of the bridge are shown with sufficient certainty. It was not indispensable that the complaint should have pointed out the particular 40 acres that were damaged. The complaint, however, is certain to a common intent in this respect when it describes the land damaged as "all that part of plaintiff's land lying along the banks of said creek and adjacent to the said bridge of defendant 'Sixteen Eight.' "

The damages recoverable under the complaint as last amended were recoverable under the original complaint, and the cause of the injury averred is the same; hence the doctrine of departure, insisted upon by the defendant in its motion to strike and in its demurrer, has no application.

The averments of negligence in placing the bents in the channel of the stream are sufficient under our liberal system of pleading.

The defendant pleaded the general issue and seven special pleas. Demurrers were sustained to all of the special pleas, and the cause was tried on issue joined on the plea of the general issue. It is sufficient to say of the assignments of error with respect of the rulings of the court on the demurrer to pleas 2, 4, and 5 that, conceding that the matter therein pleaded was good as a defense to the cause of action and that the pleas were sufficient in form, the defense could have been made under the plea of the general issue. Hence, if ...