Alabama G.S.R. Co. v. Moody

• Decision Date: 19 June 1890
• Citation: 8 So. 57,90 Ala. 46
• Parties: ALABAMA G. S. R. CO. v. MOODY.
• Court: Alabama Supreme Court

8 So. 57

90 Ala. 46

ALABAMA G. S. R. CO. v. MOODY.

Supreme Court of Alabama

June 19, 1890

Appeal from circuit court, Tuscaloosa county; S. H. SPROTT, Judge.

This action was brought by Frank S. Moody against the Alabama Great Southern Railroad Company to recover damages for the killing of a cow and heifer belonging to the plaintiff, and which were alleged to have been killed as the result of the culpable negligence of the employes of the defendant corporation. The facts and circumstances of the killing are sufficiently shown in the opinion. Upon the evidence, as adduced on the trial, the defendant requested the court, in writing, to give the following charge: "If the jury believe the evidence as given in this cause, it is their duty to find a verdict for the defendant." The court refused to give this charge, and the defendant duly excepted. There were verdict and judgment for the plaintiff, and the defendant now appeals, and assigns the refusal of the court to give the charge requested by it as error.

Wood & Wood, for appellant.

Frank S. Moody and J. M. Foster, for appellee.

CLOPTON J.

The principles of law applicable to this case are few and well settled. When an animal is discovered on the track of a railroad, the statute makes it the duty of the engineer to "use all the means within his power, known to skillful engineers, such as applying brakes and reversing the engine in order to stop the train." Code, § 1144. When the animal is discovered in dangerous proximity to the track, his duty depends upon the circumstances. If they are such as to indicate danger of its getting on the track, or to induce the supposition that it will attempt to cross, the usual means to frighten it away being unavailing, it becomes the duty of the engineer to arrest the motion of the train if need be, or to check the speed so as to bring and keep it under control until the animal has crossed, or the danger passed, but if the circumstances do not indicate apparent danger or an attempt to get on the track, then the duty to check the train does not arise. In the latter case, if the animal suddenly and unexpectedly gets on the track when the train is so near that the use of all the means within the power of the engineer could not avail to stop it in time to avoid injury, the omission to make the endeavor is not negligence, and the company is not liable for the ensuing injury. These principles have been so repeatedly and well settled by the decisions of this court that a reassertion will suffice without further consideration. Railroad Co. v. Jones, 56 Ala. 507; Railroad Co. v. Bayliss, 77 Ala. 429; Railroad Co. v. Chapman, 80 Ala. 615, 2 South. Rep. 738; Railway Co. v. Lazarus, 88 Ala....