Southern Ry. Co. v. Morris

• Decision Date: 12 April 1906
• Citation: Southern Ry. Co. v. Morris, 42 So. 19, 149 Ala. 672 (Ala. 1906)
• Parties: SOUTHERN RY. CO. v. MORRIS.
• Court: Alabama Supreme Court

42 So. 19

149 Ala. 672

SOUTHERN RY. CO. v. MORRIS.

Supreme Court of Alabama

April 12, 1906

Rehearing Denied June 30, 1906.

Appeal from Circuit Court, Colbert County; E. B. Almon, Judge.

"Not officially reported."

Action by George Morris, administrator, against the Southern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This was an action for damages for injury to a horse, alleged to have been caused by a defective bridge for failing to keep said bridge in repair. It is alleged that the bridge was a part of the public roadway used as an approach to the crossing of a public highway and the railroad. The court in his charge to the jury said: "If you believe from the evidence that at the time of this injury the defendant Southern Railway Company was operating trains over that railroad, and at that time, and a short time prior to that time, its employés and railroad men had done work on that bridge, and the company was keeping up that bridge, and that after so doing they allowed said bridge to get out of repair whereby this horse was injured, then whether defendant built the bridge or not it would be as liable as if it had built it, and in that event the plaintiff would be entitled to recover, unless you believe from the evidence he was guilty of contributory negligence. There was a verdict and judgment for plaintiff for $87.51. The defendant moved for a new trial, on the ground that the damages were excessive and opposed to the preponderance of the evidence. This motion was overruled.

Humes and Speake, for appellant.

W. P Chitwood and W. L. Chitwood, for appellee.

ANDERSON J.

This case has been here before, and the opinion is in 42 So. 17. In said opinion we held that the statutes did not relieve railroads of the common-law duty to put and keep the approaches to its tracks at a public road crossing in repair for the use of the traveling public. The opinion was fortified by good authorities, and we adhere to what we there said on this subject. While the complaint avers that the defendant constructed the bridge in question, the breach of the duty set forth was a failure to properly maintain and keep it in repair, which was the essence of the action. The averment that defendant constructed it was mere surplusage as it is not claimed that it was improperly or unsafely constructed or that the injury grew out of the construction. If the defendant was maintaining and using the...