Thrasher v. Burr

• Decision Date: 28 November 1918
• Docket Number: 8 Div. 124
• Parties: THRASHER v. BURR et al.
• Court: Alabama Supreme Court

80 So. 372

202 Ala. 307

THRASHER v. BURR et al.

8 Div. 124

Supreme Court of Alabama

November 28, 1918

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Action by Luther Thrasher, as administrator, against Seneca Burr and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Eyster & Eyster, of Albany, for appellant.

E.W Godbey, of Decatur, for appellees.

THOMAS J.

The suit was for personal injury to plaintiff's intestate who was precipitated from a wagon in which he rode.

The evidence for plaintiff was that, returning by way of the "Trinity and Moulton Road" leading across the Davis place by the hydraulic pump of defendant, the mules drawing the wagon in which intestate rode, coming within about 10 feet of the pump in operation, ran away, throwing intestate from the wagon and injuring him. The cause for their fright was variously described by the witnesses; as, the pump was making a "popping noise and because of its location, or the fact that it could not be located readily by one traveling along the road, *** calculated to frighten horses or mules of ordinary gentleness" and road trusworthiness such as were the mules being driven by witness, an experienced driver using due care in driving his team at the time. Witness' further account of the cause of fright of his animals was:

"The pump, because of its location and surroundings could not have been seen by the mules until they were in about 8 or 10 feet of the pump, and they were in 8 or 10 feet of the pump when they took fright at the pump, its operation or the noise from it or coming suddenly upon it. ***" And of the locus in quo of the injury that (opposite the pump) the road was very narrow and on the west side thereof was a deep ravine. When frightened, the mules got out of the road, the wagon was tilted in the ditch, and threw plaintiff's intestate therefrom.

The testimony for defendant showed that he installed and was operating an automatic device for pumping water from a brook for domestic purposes, on his own land and not in the public road. On the occasion of the injury, the hydraulic ram was automatically being propelled without any motor or motive force except the regular pressure of the flowing water from a high level, with its usual stroke and with no "unusual noise or display or manipulation whatever," and no more frightful to such animals on the highway than like or similar devices in use elsewhere for such purposes. Otherwise stated, that the hydraulic ram in question was a device installed and operated on defendant owner's land, of standard size, shape, and operating in the usual way, without exhibit of unusual sight or emission of peculiar noise, and had, for several months, been performing a not unusual domestic function, without occasioning any fright to animals traversing said roadway.

It is unnecessary to discuss how the roadway in question became a public thoroughfare; the evidence warranted respective counsel in treating it as such. We may observe, in passing, that a highway may be public, though little traveled ( Dunn v. Gunn, 149 Ala. 583, 42 So. 686), whether established by due proceedings for that purpose or by a dedication on the part of the owners of the soil, or by a general user as a public thoroughfare for twenty years or more (Bellview Cemetery Co. v. McEvers, 174 Ala. 457, 461, 57 So. 375; Lewman & Co. v. Andrews, Adm'r, 129 Ala. 170, 174, 29 So. 692; Harper v. State, 109 Ala. 66, 19 So. 901; McDade v. State, 95 Ala. 28, 11 So. 375; City v. Graham, 79 So. 574).

There is a recognized distinction between the liability for placing objects in or alongside the roadway. In many instances it has been held permissible to place or to permit objects to be and remain on the side of the road and outside of the traveled part thereof which, if placed or permitted to remain on the traveled way, would constitute an obstruction. For example,...