Alabama Great Southern R. Co. v. Smith

• Citation: 209 Ala. 301,96 So. 239
• Decision Date: 26 April 1923
• Docket Number: 6 Div. 855.
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. SMITH.
• Court: Supreme Court of Alabama

96 So. 239

209 Ala. 301

ALABAMA GREAT SOUTHERN R. CO. v. SMITH.

6 Div. 855.

Supreme Court of Alabama

April 26, 1923

Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.

Action for damages by Almoth E. Smith against the Alabama Great Southern Railroad Company. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Smith Wilkinson & Smith, of Birmingham, for appellant.

Nesbit & Sadler, of Birmingham, for appellee.

SOMERVILLE J.

The action is for the negligent killing of plaintiff's dog by the defendant railroad company.

Besides the general issue, defendant pleaded specially as follows:

"The plaintiff himself was guilty of negligence that proximately contributed to the death of his dog in this Plaintiff knew that said dog had a roving, rambling disposition, and that said dog frequented the defendant's railroad track and was liable to be struck by passing trains, and, notwithstanding said knowledge, plaintiff negligently failed to do anything to prevent said dog from being upon or dangerously near defendant's railroad track on the occasion complained of, which conduct on plaintiff's part proximately contributed to the death of his said dog."

A demurrer to this plea was sustained; the ground of objection being that the negligence averred did not constitute contributory negligence. We think the demurrer was well sustained.

In C. of G. Ry. Co. v. Martin, 150 Ala. 388, 43 So. 563, a special plea set up the fact that-

"By reason of the said acts and conduct of said plaintiff [i. e., in walking along the railroad track, accompanied by the dog] the said dog was put in a perilous position on and along said railroad track, *** and by reason thereof *** was run over by one of the trains of said defendant. ***"

Said the court:

"It [the plea] seems to assert broadly that, because plaintiff was a trespasser upon the defendant's track and knowingly permitted his dog to be upon the track, by reason of that fact, notwithstanding the negligence of defendant's trainmen, he should not be allowed to recover. The plea, in our opinion, was clearly bad. *** And this is in line with the uniform holding of this court that the acts and conduct of the owner of animals in permitting them to run at large and trespass on the tracks of the railroad will not preclude him from recovering for the injury done them. A. G. S. R. R. Co. v. Powers, 73 Ala. 244, and cases there cited."

This is on the theory that-

"To deprive a party of redress because of his own illegal conduct, the illegality must have contributed to the injury." Southern Ry. Co. v. Dickens, 153 Ala. 283, 45 So. 215; M. & O. R. R. Co. v. Christian Moerlein Brewing Co., 146 Ala. 404, 41 So. 17.

Plaintiff was under no duty to keep his dog off of defendant's roadway, and his failure to do so was not, in any legal sense, the proximate cause of the dog's injury. A G. S. R. R. Co. v. McDaniel, 192 Ala. 639, 646, 69 So. 60.

It will be observed that defendant's plea predicates contributory negligence upon three facts: (1) Plaintiff knew that the dog was of a roving disposition, and that he often went upon defendant's roadway; (2) plaintiff knew that the dog was, in that event, "liable" to be struck by passing trains; and (3) plaintiff "negligently failed to do anything to prevent said dog from being upon or dangerously near defendant's railroad track on the occasion complained of." In legal effect, the plea asserts that, because of plaintiff's general knowledge that the dog often went on the track, and might therefore be struck by a train, it was plaintiff's duty to either prevent the dog from running at large, or else to attend his movements and keep him away from dangerous places. This is, of course, not the law.

The phrase "liable to be struck" is not the equivalent of "probably would be struck." The word "liable" refers to a future possible or probable happening which may not actually occur. An event is liable if its occurrence is within the range of possibility. Beasley v. Linehan Transfer Co., 148 Mo. 413, 50 S.

W. 87, 89; Home Ins. Co. v. P. & U. Ry. Co., 178 Ill. 64, 52 N.E. 862, 863; Williams v. Southern Ry. Co., 119 N.C. 746, 26 S.E. 32; 5 Words and Phrases, 4110. Moreover, courts judicially know that dogs as a class, are intelligent enough to understand the danger of being run over by trains or other vehicles, and alert enough to avoid such danger under all ordinary conditions. Ala. City, etc., Ry. Co. v. Lumpkin, 195 Ala. 290, 294, 70 So. 162. Hence the allegation that a dog that goes on a railroad track is "liable" to be struck by a passing train is essentially the statement of a mere danger or possibility, too remote and conjectural to impose upon his owner any precautionary duty in the premises.

At the conclusion of the testimony the case...