Southern Ry. Co. v. Robertson

• Citation: 16 Ala.App. 155,75 So. 831
• Decision Date: 05 June 1917
• Docket Number: 7 Div. 433
• Parties: SOUTHERN RY. CO. v. ROBERTSON.
• Court: Alabama Court of Appeals

75 So. 831

16 Ala.App. 155

SOUTHERN RY. CO. v. ROBERTSON.

7 Div. 433

Court of Appeals of Alabama

June 5, 1917

Rehearing Denied June 26, 1917

Appeal from Circuit Court, St. Clair County; J.E. Blackwood, Judge.

Suit by E.D. Robertson against the Southern Railway Company. There was verdict for defendant, and from an order granting plaintiff new trial, defendant appeals. Affirmed.

Knox, Acker, Dixon & Sterne, of Anniston, for appellant.

M.M Smith, of Pell City, for appellee.

BROWN P.J.

The plaintiff sued the defendant, appellant here, for creating a nuisance on the plaintiff's premises, by placing thereon the carcass of a dead mule, in such close proximity to the plaintiff's residence that the noxious odors arising therefrom interfered with the comfortable enjoyment of his premises, to his annoyance and hurt. At the conclusion of the evidence in the case, the court directed a verdict for the defendant, but on a subsequent day, on motion of the plaintiff, the verdict was set aside, and a new trial granted, and from the order granting a new trial, this appeal is prosecuted.

There are but two questions presented for review. It is first insisted by appellant that it was entitled to notice of the motion for new trial, independent of notice arising from the fact that the motion was spread upon the motion docket at the same term of court at which the verdict and judgment were rendered. The record shows that counsel for appellant was present and represented it on the hearing of the motion, so if we concede that the defendant was entitled to notice, it was clearly denied no right by the action of the court in not directing further notice to be given or in hearing the motion without further notice.

The other contention made is that Cornett, the party who removed the carcass of the mule from the defendant's right of way and placed it on the plaintiff's premises, was not the servant or agent of the defendant, but was an independent contractor, and that the defendant was not liable for damages resulting from a nuisance which resulted from the act of Cornett in placing the mule on plaintiff's premises. There was evidence tending to show that it was the duty of the defendant's section foreman to remove the carcass of the mule from the defendant's right of way, or bury it so as to prevent a public nuisance on the right of way, to the annoyance of persons traveling on the defendant's railroad. In discharging the duty owing to its patrons to remove this carcass, it was under duty to the plaintiff not to place the carcass of the mule on his premises without his consent, and in such close proximity to his residence as that it would result in a private nuisance to him. "According to the authorities, there are two exceptions to the general rule as to the nonliability of the principal for the acts of an independent contractor; the first being, as stated by the court, where the work to...