L. & N. R. Co. v. Holmes

• Decision Date: 19 November 1946
• Docket Number: 4 Div. 989.
• Citation: 32 Ala.App. 551,27 So.2d 878
• Court: Alabama Court of Appeals
• Parties: L. & N. R. CO. v. HOLMES.

27 So.2d 878

32 Ala.App. 551

L. & N. R. CO. v. HOLMES.

4 Div. 989.

Alabama Court of Appeals

November 19, 1946

Mulkey & Mulkey, of Geneva, for appellant.

R. S. Ward, of Geneva, for appellee.

HARWOOD Judge.

At the trial below John Holmes sued the L. & N. Railroad Company for damages resulting from the killing of his cow by one of defendant's trains. A jury found in favor of the plaintiff and assessed his damages at $100. From the judgment in favor of the plaintiff rendered pursuant to the jury's action the defendant below perfected an appeal to this court.

Testimony introduced by the plaintiff below tended to establish that plaintiff's cow was struck and killed by defendant's train at or near a dirt road crossing defendant's railroad tracks. The record is silent as to whether this crossing was a public or private one, thus obviating any necessity for considering the effect of Section 170 of Title 48, Code of Alabama, pertaining to the duties of a locomotive engineer to ring his bell or blow the whistle one fourth of a mile before reaching a public crossing.

However Section 173 of Title 48, Code of Alabama, 1940, provides that: 'A railroad company is liable for all damages done to * * * stock * * * resulting from * * * any negligence on the part of such company or its agents; and when any * * * stock is killed or injured * * * by the locomotive or cars of any railroad, the burden of proof, in any suit brought therefor, is on the railroad company to show * * * that there was no negligence on the part of the company or its agents.'

Thus after proof tending to establish that plaintiff's cow was killed by the defendant's train the railroad had the burden of overcoming or rebutting plaintiff's prima facie case thereby established. Louisville & Nashville R. Co v. Green, 222 Ala. 557, 133 So. 294.

In attempting to show lack of negligence on its part the defendant below introduced as witnesses in the trial below Mr. D. Lee Stamps, the engineer, and Robert Parker, the fireman, on the locomotive that killed plaintiff's cow. Mr. Stamps testified that he was a locomotive engineer of forty-seven years experience; that the engine he was operating on the morning the cow was killed is about fifty feet long to the boiler, and that from his position on the right side of the engine anything approaching from the left side of the track cannot be seen unless it is thirty or forty yards out toward the front of the engine; that he could see about a mile down the track in the vicinity of where the cow was killed, but he did not see the cow until she came up out of some broom sedge on the left side of the track some thirty or forty yards in front of the train; that his locomotive was equipped with all modern appliances, but he did not blow for the cow as he was traveling between thirty-five and forty miles per hour, and the cow was hit at almost the same instant he saw her, and there was nothing he could do to avoid the accident.

The testimony of the fireman Parker was simply to the effect that he was busy firing the engine at the time the cow was hit and therefore did not see the cow at all. He...