Gulf, Mobile & Ohio R. Co. v. Phifer

• Citation: 42 So.2d 44,34 Ala.App. 588
• Decision Date: 15 August 1949
• Docket Number: 6 Div. 713.
• Court: Alabama Court of Appeals
• Parties: GULF, MOBILE & OHIO R. CO. v. PHIFER.

42 So.2d 44

34 Ala.App. 588

GULF, MOBILE & OHIO R. CO. v. PHIFER.

6 Div. 713.

Alabama Court of Appeals

Aug. 15, 1949

F W. Davies, Birmingham, for appellant.

Chas. E. Tweedy, Jr., of Jasper, for appellee.

HARWOOD Judge.

Verdict and judgment in the court below awarded the plaintiff $750.00 damages for death of plaintiff's fox hound, allegedly caused by the negligence of the defendant its agents or servants in the operation of its train. The defendant perfected its appeal to this court.

The evidence presented by the plaintiff below tended to show that on the night of July 20, 1946 the plaintiff and W. A. Jackson were fox hunting in Walker County with a pack of some 10 ro 12 hounds. One of the hounds was Rex Skinner, a champion fox hound with several national champions in his ancestry.

The hounds were in pursuit of a fox, in the direction of the defendant's railroad track. According to Jackson he heard the hounds just before the train passed, when he was about 200 yards from track, but could not see them. They were 'coming up the railroad from toward Parrish' * * * 'They were right at the track, but I could not tell whether they were exactly on it or just near it.'

The plaintiff was within 150 or 200 yards of the railroad at the time the train passed. He 'couldn't tell if the dogs were on the track, or how far from it as [he] couldn't see the dogs,' but could only locate them by sound.

After the train passed the voice of Rex Skinner was no longer heard. Search revealed his dead body on the railroad track at a private, and apparently little used crossing. His hind legs were severed, and on the outside of the rail, his body on the inside. The body was not mangled and did not appear to have been rolled.

Among the witnesses presented by the defense were the four crewmen of the train that allegedly killed the hound.

These men testified in substance that it was their duty to keep a lookout at all times in so far as such observation was consistent with their duties in connection with the operation of the train. They were unaware that a dog had been hit or run over by the train on the trip on July 20, 1946, as they were first informed of this fact in October 1946. All four stated they were keeping a lookout on the night in question at such times as they were not occupied with their operational duties. None of them could state that they were keeping a lookout at the specific crossing at which this dog was killed, or were at the time engaged in other duties since it was a routine trip having been made over two months prior to the time they first learned that the dog had been killed.

All four of the crewmen however unequivocally testified that they had not seen or observed any dogs on or near the tracks on the night in question.

There was further evidence from these witnesses, or some of them to the effect that the train they were operating that night was in good mechanical and running order, and that the headlight was burning properly.

Among the charges requested by the defendant was an affirmative charge in its favor.

It is clear from the evidence that the dog was killed at a private crossing in the open country. Since the crossing was not a public crossing, nor within a fourth of a mile of any regular station, nor within any city, town, or village, nor at a place where two railroads cross, Sections 170 and 171 of Title 48, Code of Alabama 1940, have no application.

There is involved in this case however a consideration of Section 173, of Title 48, Code of Alabama 1940, commonly called the 'burden of proof' statute, and its interpretation and application in cases similar to the present one.

Section 173, supra, reads as follows:

'A railroad company is liable for all damages done to persons, or to stock or other property, resulting from a failure to comply with the requirements of the three preceding sections, or any negligence on the part of such company or its agents; and when any person or stock is killed or injured, or other property destroyed or damaged by the locomotive or cars of any railroad, the burden of proof, in any suit brought therefor, is on the railroad company to show a compliance with the requirements of such sections, and that there was no negligence on the part of the company or its agents.'

In the recent case of Alabama Great Southern Railroad Company v. Hill, Ala.App. 1949, 43 So.2d 136, 137, Carr, Judge, of this court wrote:

'The appellee having established by the evidence that the dog was killed by the defendant's train, the burden of proof was then placed on the appellant to show that it was not negligently done. Title 48, Sec. 173, Code 1940; Louisville & N. R. Co. v. Green, 222 Ala. 557, 133 So. 294; Louisville & N. R. Co. v. Coxe, 218 Ala. 25, 117 So. 293; Louisville & N. R. Co. v. Watson, 208 Ala. 319, 94 So. 551; Southern R. Co. v. Harris, 207 Ala. 534, 93 So. 470; Louisville & N. R. Co. v. Carter, 213 Ala. 393, 104 So. 754.

'The bare statement of the above doctrine may invite some uncertainty as to its applicable purport and meaning. A further discussion of the rule is appropriate.

'In 10 R.C.L., p. 897, Section 45, under the heading of 'Shifting of Burden', we find:

"The term 'burden of proof' has two distinct meanings. By the one is meant the duty of establishing the truth of a given proposition or issue by such a quantum of evidence as the law demands in the case in which the issue arises; by the other is meant the duty of producing evidence at the beginning or at any subsequent stage of the trial, in order to make or meet a prima facie case. Generally speaking, the burden of proof, in the sense of the duty of producing evidence, passes from party to party as the case progresses, while the burden of proof, meaning the obligation to establish the truth of the claim by a preponderance of evidence, rests throughout upon the party asserting the affirmative of the issue, and unless he meets this obligation upon the whole case he fails.'

'See also, Louisville & N. R. Co. v. Green supra.

'In the last cited case, Chief Justice Anderson was discussing the rule in its application to the propriety of the giving or refusal of the general affirmative charge. We are not here primarily concerned with this application. However, in logical reasoning, the opinion affords some analogy to the question before us for review.

'In the recent case of Shelton v. Gordon, Ala.Sup., 40 So.2d 95, 97, our Supreme Court had occasion to interpret the doctrine of presumption of undue influence in a will contest case. The court held:

"But this statement principle only means that when the evidence shows this situation to have existed, the party against whom this presumption has been cast has the duty of overcoming it by satisfactory evidence, and failing, the opposing contention will prevail. The burden of proof, as such, however, never shifts during the course of the trial and the duty of substantiating that the will was procured by undue influence rests on the contestant throughout.'

'See also, King v. Aird, 251 Ala. 613, 38 So.2d 883; Birmingham Trust & Savings Co. v. Acacia Mutual Life Ass'n, 221 Ala. 561, 130 So. 327.'

In Louisville & N. R. Co. v. Coxe, 218 Ala. 25, 117 So. 293, 294, our Supreme Court in a per curiam opinion considered the propriety of the action of the lower court in giving the affirmative charge for the plaintiff in a case similar to the one now under consideration, and in which the defendant had presented no evidence contradictory to that of the plaintiff. In the Coxe case, supra, the defendant's locomotive was pushing cars on an up grade when the dog was killed by the leading cars. In reversing the case the Supreme Court stated:

'The dog was not killed at any public crossing; therefore the provisions of section 9952, Code of 1923 [Code 1940, Tit. 48, § 170] (if in any case they would be of influence in a case of this character), are without application here. The evidence tends to show no member of the train crew on the car at that end of the train saw the dog. No evidence contradictory to that of plaintiff was offered by defendant as to the accident, and the court gave the affirmative charge for plaintiff evidently upon the theory that a dog, being personal property, is within the influence of our 'burden of proof' statute (section 9955, Code of 1923 [Code 1940, Tit. 48, § 173]; Louisville & N. R. R. Co. v. Watson, 208 Ala. 319, 94 So. 551; Alabama Great Southern R. Co. v. Wedgworth, 208 Ala. 514, 94 So. 549; Southern Ry. v. Harris, 207 Ala. 534, 93 So. 470), and, as said, the statute is not confined in its operation to the three preceding sections in the Code (Ex parte Southern Ry., 181 Ala. 486, 61 So. 881), the burden of proof shifted to the defendant. If, however, the evidence as to the death of the animal suffices to overcome the effect of the statute and meets the requirements thereof, the affirmative charge should not be given, as it is immaterial by which party to the litigation the evidence is offered. 22 Corpus Juris, 70; U. S. v. Beaman, 8 Cir., 242 F. 876.

'The rule under the burden of proof statute...