Southern Ry. Co. v. Lewis

• Decision Date: 08 February 1910
• Citation: 51 So. 746,165 Ala. 555
• Parties: SOUTHERN RY. CO. v. LEWIS.
• Court: Alabama Supreme Court

51 So. 746

165 Ala. 555

SOUTHERN RY. CO. v. LEWIS.

Supreme Court of Alabama

February 8, 1910

Appeal from Circuit Court, Calhoun County; A. H. Alston, Judge.

Action by S. A. Lewis against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint was as follows: (1) "Plaintiff claims of the defendant $250 as damages, for that heretofore, to wit, on and prior to the 7th day of July, 1906, and subsequently thereto, defendant maintained a railroad track or tracks in Anniston, Calhoun county, Alabama; said tracks running in a northerly and southerly direction, and near to a foundry and machine shop and coal and coke yard operated and owned by plaintiff in Calhoun county, Alabama, alongside or near said track or tracks. Plaintiff further avers that shortly prior to the 7th day of July, 1906, defendant caused to be excavated, or excavated, the lands west of the said track or tracks, and by such excavation the course of the surface drainage of the lands to the north and west of plaintiff's said shop and yard was changed, so that great quantities of water, which otherwise would have flowed away from said property and without injury thereto, were by reason of, and as a proximate consequence of, said excavation caused to overflow plaintiff's said property, and said foundry was flooded. Plaintiff incurred great expense in cleaning up and remedying the results of said flooding. The work in said foundry was stopped for several days on account of said flooding. The coal and coke in plaintiff's yard was washed away in large quantities, and was greatly damaged and depreciated in value by reason of being so flooded and washed away. Great quantities of mud and slush and débris were caused to get mixed with said coal and coke, and great quantities of such material were washed into said foundry and plaintiff was greatly inconvenienced and incommoded in and about the operation of said foundry and machine shop, and in and about the conduct of said coal and coke yard. Plaintiff further avers that said flooding occurred on, to wit, the 7th day of July, 1906, and plaintiff was damaged as aforesaid on and subsequently to said date." (2) Same as first, down to the last allegation thereof, with the following addition: "Said flooding occurred heretofore to wit, on the 17th day of July, 1906, and was a separate and distinct flooding from that alleged in the first count." (3) Same as count 1 down to the last paragraph thereof, with the following addition: "Said flooding occurred heretofore, to wit, on the 5th day of September, 1906, and was a separate and distinct flooding from that alleged in the first and second counts." The pleas are sufficiently set forth in the opinion.

Knox Acker & Blackmon, for appellant.

Matthews & Matthews, for appellee.

MAYFIELD J.

This is an action by appellee, a lower landowner, against appellant railroad company to recover damages caused by the flooding of plaintiff's premises. The flooding is alleged to have been caused by the defendant company's excavating, or causing to be excavated, the land to the west of its railroad track, thereby changing the course and flow of the surface drainage of the land to the north and west of plaintiff's land and plant, so that the surface and drainage water from this territory, above plaintiff's land and plant, was made thereby to flow upon and over plaintiff's property to his great damage, etc.; that but for the excavation complained of the water would, and did prior thereto naturally flow away from plaintiff's property, and not to or over it, as it did after the excavation, with appropriate averments as to damages suffered in consequence thereof. The complaint contained three counts, all alike except that each claimed special damages for a particular and distinct overflow or flooding occurring at a different date named therein, caused by an excavation. To the complaint the defendant pleaded the general issue, the statute of limitations of 10 years, contributory negligence, the act of God in sending unprecedented rains, and that the excavation was done by an independent contractor. All of these pleas were stricken from the file, except the general issue, upon which the trial was had, which resulted in a verdict for plaintiff, as to each of three counts, in the aggregate sum of $300. From this judgment defendant appeals.

The first assignment insisted upon is that the defendant is not liable in this action, because the excavation directing the waters was done by the defendant's independent contractor, and not by it, its agents, or servants. True, the law is, as is insisted by counsel for appellant, that a master, principal, owner, or operator is not liable for the negligence of his independent contractor, and is not so liable though he may direct, control, and approve the work which is negligently done; but it is equally well-settled law that if the work contracted to be done is of itself hazardous or will, in its progress, however skillfully done, be necessarily or intrinsically dangerous, or liable to result in injury to another, or if the law imposes on the master or owner the duty to keep the subject of the work in a safe condition, the owner or contractor is liable, the same as if he performs it himself. Wood on Master & Servant (2d Ed.) p 603; Cuff's Case, 35 N. J. Law, 17, 10 Am. Rep. 205; McCary's Case, 84 Ala. 472, 4 So. 630, in which the above and many other authorities are cited. If the work to be done by the contractor cannot be done without danger or injury to third parties, if its very nature and existence is such as to cause or produce danger or injury, the owner, master, or contractor is liable as if he performs it himself. If the work is not necessarily dangerous, and will not, if properly executed, result in danger or injury to third parties, but is rendered so only by the negligent manner in which it is performed, then the owner, master, or operator is not liable, but only the independent contractor. In this case there is no allegation or claim that the work was negligently done. It was the doing of the work in any manner that was alleged to have constituted the wrong. Probably the better it was done the greater was the wrong or injury to the plaintiff. There was no attempt on the part of either party to show that the work was negligently done, or was done in a manner not contemplated, ordered, and directed by the defendant. Hence, as to this action, it was immaterial that the work was done by the defendant's contractor. While the later cases in this state, cited by counsel for appellant, to wit, Martin's Case, 100 Ala. 511, 14 So. 401, Scarborough's Case, 94 Ala. 499, 10 So. 316, Chasteen's Case, 88 Ala. 591, 7 So. 94, and many others not cited, emphasize the rule that the master, owner, or contractor is not liable for the torts, negligence, etc., of the contractor, his agents, or servants, none of them deny the other rule above announced and amplified by Mr. Wood on Master and Servant. Dillon on Municipal Corporations (3d Ed.) § 1029, and McCary's Case, 84 Ala. 472, 4 So. 630. Hence there was no error in the various rulings of the trial court as to the question of law. Windham's Case, 126 Ala. 552, 28 So. 392; Behrman's Case, 136 Ala. 508, 35 So. 132; Coskry's Case, 92 Ala. 254, 9 So. 202; Massey v. Oates, ...