Alabama City, G. & A. Ry. Co. v. Lumpkin

• Decision Date: 04 November 1915
• Docket Number: 7 Div. 749
• Citation: 195 Ala. 290,70 So. 162
• Parties: ALABAMA CITY, G. & A. RY. CO. v. LUMPKIN.
• Court: Alabama Supreme Court

70 So. 162

195 Ala. 290

ALABAMA CITY, G. & A. RY. CO. v. LUMPKIN.

7 Div. 749

Supreme Court of Alabama

November 4, 1915

Rehearing Denied Dec. 2, 1915

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by J.F. Lumpkin against the Alabama City, Gadsden & Attalla Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts of 1911. Reversed and remanded.

Hood &amp Murphree and Chas. W. Moffett, all of Gadsden, for appellant.

McCord & Davis, of Gadsden, for appellee.

McCLELLAN J.

The plaintiff's (appellee's) dog was killed by being run over by a street car in a public thoroughfare in the city of Gadsden. The court refused to give the jury the special instructions lettered B, C, and D, requested for the defendant. They will be set out in the report of the appeal. There was no error in this action of the court. These requests for instruction would predicate the inception, with respect to time and occasion, of the motorman's duty, and, in consequence the measure of the care due in the event to be observed by the motorman, upon the judgment and acts of the individual operative; whereas the standard established by law for determining the propriety vel non of conduct or omission as respects negligence is that of the reasonably prudent man likewise circumstanced and likewise advised. Reaves v. Maybank, 69 So. 137, 140, 141; L. & N.R.R. Co. v. Holland, 173 Ala. 675, 688, 55 So. 1001; L. & N.R.R. Co. v. Young, 153 Ala. 232, 236, 237, 45 So. 238, 16 L.R.A. (N.S.) 301. But, aside from this justification of the court's refusal of these requests, it is clear that the instructions given to the jury at the defendant's instance, not only advised the jury on the subject of the refused requests, but also at least substantially covered the matters dealt with in the refused charges B, C, and D.

At plaintiff's request the court gave the jury these charges:

(2) "If the jury is reasonably satisfied from the evidence that plaintiff's dog was in the street running diagonally across the street in front of defendant's car and approaching the track, and there was nothing in the way to prevent defendant's motorman in charge of said car from seeing the dog, it was his duty to see it and to prevent injuring it if reasonably within his power to do so, he was guilty of negligence for which the defendant would be liable."

(3) "The court charges the jury that a motorman operating a car over the streets of a city is chargeable with the duty of so reasonably handling said car as that domestic animals on the street may not be injured or killed by said car. He is required by law to keep diligent lookout for such animals upon or near to the track, and, when he sees an animal approaching the tracks in front of a car for the purpose of crossing the tracks, it is his duty to immediately get his car under control so as to stop it, or slacken its speed so as to prevent injuring said animal. He cannot take it for granted that the animal will not come upon the track when he sees it approaching the track."

It is settled in this jurisdiction that, since a dog is the subject of ownership like any other property, the negligent killing of a dog invests the owner with a right to be compensated for the property loss wrongfully inflicted upon him. L. & N.R.R. Co. v. Fitzpatrick, 129 Ala. 322, 29 So. 859, 87 Am.St.Rep. 64, among other deliverances made here.

It is the duty of a motorman operating a street car along a public street to keep diligent lookout for persons and property using the street. B.R., L. & P. Co. v. Brantley, 141 Ala. 614, 37 So. 698; Anniston Elec. Co. v. Rosen, 159 Ala. 195, 206, 207, 48 So. 798, 133 Am.St.Rep. 32; Mobile Light Co. v. Baker, 158 Ala. 491, 48 So. 119. From instructions given for and at the request of the defendant there appears to have been an acceptance of the soundness of this rule, though in the instructions thus given there appears to have been a purpose to unduly restrict the scope of this duty to keep a diligent lookout "in front" only of the moving car.

While charge 2, above quoted, imports its author's purpose to have the just-stated rule applied to phases of the evidence and to predicate upon the breach of the duty thereby exacted the declaration that the derelict operative was negligent, the instruction, in its more substantial parts, appears at least to be subject to the criticism that it possessed misleading tendencies, and, when given to the jury, called for explanation, and so because of the quite possible interpretation that it confused and blended in statement two distinct...