Alabama Great Southern R. Co. v. McDaniel

• Decision Date: 03 June 1915
• Docket Number: 19
• Citation: 69 So. 60,192 Ala. 639
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. McDANIEL.
• Court: Alabama Supreme Court

69 So. 60

ALABAMA GREAT SOUTHERN R. CO. v. McDANIEL.

192 Ala. 639

No. 19

Supreme Court of Alabama

June 3, 1915

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by Ida May McDaniel against the Alabama Great Southern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Transferred from the Court of Appeals under Acts 1911, p. 449,§ 6.

The facts sufficiently appear from the opinion of the court, as do the pleadings.

The following charges were refused to defendant: (1) Affirmative charge.

(2) Same as to first count of the complaint.

(3) Same as to the second count of the complaint.

"(4) If you believe all the evidence in this case, it was not negligence of itself for defendant's engineer to run the train at more than six miles per hour.

"(5) If you believe all the evidence in this case section 446 of the City Code of Bessemer is void so far as it purports to prohibit trains from being run at more than six miles an hour going forward over the crossing at or near which the plaintiff's cow was killed."

(6) Same as 5 as to said section of City Code being unreasonable.

(7) Same as 5, except that it is alleged that said Code is void as being an interference with interstate commerce.

"(8) If you believe from all the evidence in this case that plaintiff's cow came on the track so suddenly that defendant's engineer could not stop or check the train so as to prevent the killing, by the use of all preventive means at his hands known to skillful engineers, you must find for defendant."

(10) Same as 7.

(11) Same as 8.

"(13) You cannot find for plaintiff under count 2 of the complaint if you are reasonably satisfied that the cow was struck south of the public crossing.

"(14) If you are reasonably satisfied from the evidence that the cow was struck south of the public road crossing then you cannot find for plaintiff on account of any violation by defendant's engineer of section 446 of the Bessemer City Code."

A.G. &amp E.D. Smith, of Birmingham, for appellant.

Pinkney Scott, of Bessemer, for appellee.

THOMAS J.

This is a suit by appellee for damages for the killing of her cow by appellant's locomotive engine at Ninth street crossing in the city of Bessemer.

The amended complaint contains two counts. In answer to each count the appellant pleaded the general issue and special plea numbered 2. To the special plea demurrer was sustained. Plea numbered 2 is as follows:

"Further answering said complaint, this defendant says that the cow for the death of which the plaintiff sues was in charge of a herder whose duty it was to take care of said cow and see that she was not injured; that said herder was the agent of the plaintiff in the herding of said cow, and defendant avers that said herder was negligent while acting within the line and scope of his authority as such agent in herding said cow, and negligently allowed her to go upon the track of the defendant and

to be upon said track at the time of her injury and death therefore, defendant says that plaintiff should not recover in this case." There was an ordinance which placed the duty on the defendant to maintain the rate of speed of six miles an hour in the city of Bessemer, and a violation of the ordinance, it is alleged, proximately contributed to appellee's damage. The appellee and her agent had the right to rely upon the observance of the ordinance by the appellant, and could proceed along the street to the point where it crossed the railroad track with that assurance.

The averment of the ordinance in the complaint is, in effect, that if the ordinance had been observed, the injury would not have been inflicted. There could be no injury without the impact, on the crossing, by the engine; and if it had been proceeding at the rate of six miles an hour, rather than 20 miles, or other higher rate of speed, it would not have reached the crossing at the moment it did inflict the injury. In Gothard v. A.G.S.R.R. Co., 67 Ala. 114, this court said:

"The running of a railroad train within the limits of a city, at a rate of speed prohibited by its ordinances under a penalty, would constitute negligence." L. & N.R.R. Co. v. Webb, 90 Ala. 185, 8 So. 518, 11 L.R.A. 674; S. & N. Ala. R.R. Co. v. Donovan, 84 Ala. 141, 4 So. 142.

The pleas fail to allege that appellee's boy in charge of the cow was guilty of any negligent conduct which was the proximate consequence of the injury. The herder and cow had the right to go along the public streets of Bessemer, as it is shown they were doing at the time the accident occurred. The burden was upon the appellant to observe the statute of the state as to giving alarms when approaching a public crossing (sections 5473-5476 of the Code; Ex parte So. Ry. Co., 181 Ala. 486, 61 So. 881; McGill v. M. & St. L.R. Co., 113 Iowa, 358, 85 N.W. 620), as well as to observe the ordinance regulating its speed within the city limits, as prescribed in section 446 of the Code of Bessemer.

In the case at hand, McDaniel's boy had turned the cow from the pasture and "headed her home" along a certain public highway or street in the city, the only route leading to the owner's home. The law required this appellant to regard the safety of persons, vehicles, or domestic animals going along such public street, and to that end to observe the ordinances of said city, as well as the state statutes, and to keep its engine under such control as to avoid accident and injury at such public street crossing. Ex parte So. Ry. Co., supra. As was said in the case of the Alabama Great Southern Railway Company v. McAlpine & Company, 71 Ala. 545:

'The rule has been frequently declared by this court, in accordance with the generally recognized doctrine, that the law exacts of railroad companies, and other common carriers, in their use of steam power, extraordinary diligence, or that degree of diligence which very careful and prudent men take of their own affairs.' "

It is the duty of the engineer in charge of an engine approaching a public crossing in a city to have regard for the safety of the public passing there, or for such obstructions as may be on or going over such crossing, or in dangerous proximity thereto, and to have his engine under such control as may be necessary in the light of the condition and surroundings of the crossing. This is required to safeguard the lives and property of those exercising the right of crossing at such point. Had the engineer approached this crossing within the limit of speed (six miles per hour) prescribed by the city ordinance he could have kept a more thorough lookout for obstructions on, or about to go upon, the track, and after discovery would have been more readily enabled to avoid accident.

The complaint alleges the cow was killed at a public crossing and in a city where the burden was on the defendant to show that it had complied with the statutes of the state, the ordinances of the city, and its general duty, in approaching and passing this much, and rightfully, frequented place. Section 5476 of the Code of 1907 provides that:

"When any person or stock is killed or injured, or other property destroyed or damaged by the locomotive or cars of any railroad, the burden of proof, in any suit brought therefor, is on the railroad company to show a compliance with the requirements of such sections, and that there was no negligence on the part of the company or its agents." Ex parte So. Ry. Co., supra.

If it would be excused for the damage, specific allegation must be made in plea, and supported by proof of facts, showing that appellee contributed by his own negligence or that of his agent to the injury.

Plea numbered 2 falls short of this allegation. It seeks to shift the burden, by general averment that did not amount to a statement of fact, that appellee was guilty of negligence that proximately contributed to the death of the animal in question. Shahan v. A.G.S.R.R. Co., 115 Ala. 181, 193, 22 So. 449, 67 Am.St.Rep. 20.

This court has uniformly held that where stock are by statute prohibited from running at large, the unlawful act of the owner in suffering them to run at large is no defense to an action for the negligent killing of such animals. In fact, the appellee owed the appellant no duty not to let her stock go at large or upon the track of the appellant. The plea does not allege that appellee did drive the animal on the track at the time it was killed on the crossing, but that "she negligently allowed her to go upon the track and to be upon said track." To hold the plea sufficient would be, in effect, to overturn the long line of authority we have referred to, holding that no such duty is owing by owners of animals.

In M. & O.R.R. Co. v. C.M.B. Co., 146 Ala. 404, 41 So. 17, Chief Justice Anderson declared that the negligence of the defendant's agents in permitting stock to escape from plaintiff's inclosure was not the proximate cause of the killing of the animal by another railroad. Judge Anderson says: "We adopt what Addison says on the subject: 'If the wrong and resulting damage are not known by common experience to be naturally and usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, then the wrong and damage are not sufficiently conjoined and concatenated as cause and effect to support an action.' Cooley on Torts, p. 73, § 69. Mr. Bishop, in stating the principle, says: 'If, after the cause in question has been in operation, some independent force comes in and produces an injury, not in its natural or probable effect, the author of the cause is not responsible.' "

In the case of the Southern...