Alabama G.S.R. Co. v. Smith

• Decision Date: 24 February 1888
• Citation: 3 So. 795,85 Ala. 208
• Parties: ALABAMA G. S. R. CO. v. SMITH.
• Court: Alabama Supreme Court

3 So. 795

85 Ala. 208

ALABAMA G. S. R. CO. v. SMITH.

Supreme Court of Alabama

February 24, 1888

Appeal from circuit court, Etowah county; JOHN B. TALLY, Judge.

This was an action by the appellee, B. F. Smith, against the appellant, the Alabama Great Southern Railroad Company, for the recovery of damages for the killing by the defendant of a cow, the property of the plaintiff. There was evidence, as shown by the opinion of this court; and notwithstanding this evidence the following charge in writing was asked by the plaintiff and given by the court, to which the defendant excepted: "No. 2. That if the jury believe from all the evidence that the engineer in charge of the train did not use ordinary diligence in running the train at the place where the cow was killed by the cars of the defendant, and that said engineer failed to use all the necessary means known to skilled engineers to prevent the injury, then the verdict must be for the plaintiff." The giving of this charge was assigned as error.

Samuel Rice and L. A. Dobbs, for appellant.

Whitlock, Walden & Son, for appellee.

STONE, C.J.

The testimony of the engineer was to the effect that the cow sprang on the track about 50 yards ahead of the train; that the animal was not and could not be seen before that time; and that, when discovered, all the appliances known to skillful engineers could not have stopped the train in time to save the cow. If this be believed, it was a complete defense to the action. Charge No. 2, given at the instance of plaintiff, ignored this principle and the testimony stated above, and must work a reversal of the judgment rendered. Railroad Co. v. Bayliss, 75 Ala. 466; Same v. Deaver, 79 Ala. 216; Railroad Co. v. McAlpine, 80 Ala. 73; Railroad Co. v. Caldwell, ante, 445. Reversed and remanded.