City of Tuscaloosa v. Fair ( 1936 )

There is no evidence to sustain a finding whether the hole was left when the guy wire was removed or whether it developed later by the sinking of the soil.

There is evidence of the fact that the general locality was frequently used for many purposes, and that no one doing so had observed the hole. Its appearance in August, 1932, as described, does not tend to show whether it was left there in that condition in May, 1931, and continued unobserved during that time, or developed later by a sinking of the soil. It is wholly conjectural as to when it occurred. Verdicts may not be predicated on conjecture.

After again reading the evidence, we fail to find any to the effect that the hole was at the exact spot where the guy wire was attached to the pole, as distinguished from one six inches away. No one undertook to make such a distinction. It was not only uncertain as to whether the wire was attached to one or the other post, but we think the better, if not the only fair, inference is that it was not the one deep under the sink hole. That was much older, and cut off deeper, and more decayed. The newer was probably the last one standing. No subsidence occurred over it.

Under such circumstances, to hold that the jury could reasonably infer that the company operated on the old one, and cut it off deeper than the other, and filled up the hole carelessly, or without due regard to the probability of it sinking and thus causing a dangerous hole, in the absence of all evidence in that regard, is extending the right of plaintiff beyond what seems to us to be reasonable.

In Houston v. Waverly, 225 Ala. 98, 142 So. 80, the evidence was that a gasoline tank was buried under an unimproved sidewalk; that it was removed, and the hole filled with loose dirt which was packed; that rainwater and use of a hydrant near by caused the earth to settle, creating a depression in the sidewalk. The court held that it was the duty of the company which did the work to anticipate and take care of the subsidence of the loose earth from natural causes. That duty resulted, we think, from the size, condition, and location of the hole, its manner of being filled, and the fact that the subsidence was due clearly to those causes, and that there was a reasonable probability of such an event resulting from them.

Here it is conjectural whether the company did any act in respect to this exact spot, or what caused the subsidence, or the material or manner of filling the hole, or that such subsidence should have been reasonably anticipated from such occurrences.

Application overruled.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.