Alabama G.S.R. Co. v. Hall

• Decision Date: 05 June 1902
• Citation: 32 So. 259,133 Ala. 362
• Parties: ALABAMA G. S. R. CO. v. HALL.
• Court: Alabama Supreme Court

32 So. 259

133 Ala. 362

ALABAMA G. S. R. CO. v. HALL.

Supreme Court of Alabama

June 5, 1902

Appeal from circuit court, De Kalb county; J. A. Bilbro, Judge.

Action by C. L. Hall against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff claimed damages, under separate counts, for injury to a horse and a mule, but the court gave the general affirmative charge for the defendant as to the damages claimed for the mule. The count of the complaint claiming damages for the horse, and the substance of the demurrers to said count, are set out in the opinion. The recital in the judgment entry relative to the rulings upon the demurrer to this count of the complaint, which was the amended complaint was as follows: "The defendant demurs to amended complaint, and, on consideration of the court, the demurrer is overruled." On the trial of the cause it was shown that the train which frightened the horse of the plaintiff was a local freight train going north. The evidence for the plaintiff tended to show the following facts: The train had backed onto a switch to get a car. The horse in question was on the side track, and ran along the side ahead of the train for a short distance--about 75 yards--to the main line. That when the horse was on the north side track the train was going toward him, and was about 50 yards off. The horse then ran up the line to the trestle, ran on the trestle, and fell through it. The trestle was from 30 to 35 yards north of the point where the side track comes into the main line. The horse was frightened by the train, and ran along the track ahead of it until he fell into the trestle. The engineer did not blow the whistle or ring the bell of the engine. The engineer began checking the train before the engine got on the main line, but the engine and cars were moving when the horse fell in the trestle. When the train stopped, the engine was on the main line, and the tender and rest of the train were on the switch, and the engine was about 30 yards from the horse. The engine did not come in contact with the horse and did not get nearer to him than about 30 yards. The engine was going faster than the horse, and was gaining on him. The fall of the horse was proven, and it was shown that he was worthless after the accident. The engineer on said train, as a witness in behalf of the defendant, testified that he saw the horse start down the side track towards the main line that at that time the train was running at 5 to 6 miles an hour, and should have been stopped in from 15 to 30 feet that the horse was about 200 feet in front of the engine, and the engine never got closer than 150 feet to him, and when he stopped the engine it had just gotten on the main line. It was shown that the main track was upon an embankment. The engineer testified that the embankment did not have precipitous sides, but was an ordinary embankment. A witness for the plaintiff testified that when the mule went down the embankment he partly slid down. The court, in its oral charge to the jury, instructed them as follows: "When the animals got on the main line, there are two matters for the jury to consider: First, were the animals in such a state of fright at that time that they would have fallen into the trestle anyway? If it reasonably appears that the animals would have continued in their flight and fallen into the trestle whether the train moved further or not, then the plaintiff cannot recover (but, if that does not reasonably appear, then, when the animals got on the main line, if the engineer saw that they were headed toward the trestle, it became the duty of the engineer, on perceiving the animals on the track, to take steps to stop the train; and if the...