St. Louis & S.F.R. Co. v. Jamar

• Decision Date: 15 May 1913
• Parties: ST. LOUIS & S.F.R. CO. v. JAMarch
• Court: Alabama Supreme Court

62 So. 701

182 Ala. 554

ST. LOUIS & S.F.R. CO. v. JAMarch

Supreme Court of Alabama

May 15, 1913

Rehearing Denied June 19, 1913

Appeal from City Court of Birmingham; William M. Walker, Judge.

Action for personal injuries by D.W. Jamar against the St. Louis &amp San Francisco Railroad Company. Verdict and judgment for plaintiff, and defendant appeals. Reversed and remanded.

The following is count 2: "Plaintiff further claims of defendant the sum of $10,000 damages for that on, to wit, the 17th day of August, 1906, the defendant owned, used, or occupied a certain railroad, right of way, or roadbed along and over a public thoroughfare in the city of Birmingham Ala., known and designated as Thirteenth street; that on said thoroughfare between Seventh and Eighth avenues in the city of Birmingham the defendant negligently allowed or permitted a deep ditch to cross the said right of way or railroad in a perilous and dangerous condition. Plaintiff further avers that at said time, while passing along said street at said place, he fell or was caused to fall into said ditch, and as a direct and proximate result of defendant's negligently permitting or allowing the said ditch to be in said dangerous condition. Plaintiff further avers that as a direct and proximate result of said injury his leg was broken, and he was bruised, lamed, and injured internally and externally caused to suffer much physical pain and mental anguish; that he was also caused to lose much time from his business, and expended large sums of money, and has been permanently injured as aforesaid, all to his damage in said sum of $10,000; wherefore, he brings this suit." The following are the grounds of demurrer referred to: "(6) The averment of negligence is naught but the conclusion of the pleader. (7) It is not made to appear save by way of conclusion that defendant was under any legal duty to close or fill in or change the condition of the ditch or drain. (8) No facts are averred in said count from which it affirmatively appears that defendant was under any duty to the plaintiff. (9) For aught that appears from said count the ditch or drain referred to was a natural water course, the condition of which defendant was under no duty to alter. (10) It is not made to appear that said ditch was caused by defendant or resulted from the construction or operation of the railroad."

Campbell & Johnston, of Birmingham, for appellant.

Hugo L. Black, of Birmingham, for appellee.

McCLELLAN J.

Action by a pedestrian (appellee) for damages resulting from an injury received by falling into a ditch or drain alleged to have been negligently permitted or allowed by the appellant in a public street in which appellant's railway was constructed. Of the four counts filed, only count 2 was submitted to the jury. The report of the appeal will contain count 2.

Independent of statute or contract, when a railway is allowed to be constructed in a public street, the duty attaches to have and to keep that part of the street occupied by its track, including that part related to the support of the rails, in such condition as to be free from pitfalls and from danger to the traveling public. Montgomery St. Ry. Co. v. Smith, 146 Ala.

316, 39 So. 757; Reading v. Traction Co., 202 Pa. 571, 573-4, 52 A. 106; Nellis on Street Railroads, pp. 259-262, 263, 266; 3 Dillon's Munic. Corp. § 1276; 2 Elliott on Streets & Roads, § 971; 36 Cyc. pp. 1403, 1404, 1405, 1406.

For negligence in respect of the performance of this duty the railway company is liable to one (a traveler in the public streets) injured as a proximate consequence of such neglect. Reasonable care and...