Alabama Midland Ry. Co. v. McGill

• Decision Date: 19 April 1899
• Parties: ALABAMA MIDLAND RY. CO. v. MCGILL.
• Court: Alabama Supreme Court

25 So. 731

121 Ala. 230

ALABAMA MIDLAND RY. CO. v. MCGILL.

Supreme Court of Alabama

April 19, 1899

Appeal from circuit court, Dale county; J. M. Carmichael, Judge.

Action by James C. McGill against the Alabama Midland Railway Company. From a judgment in favor of plaintiff, defendant appealed. Affirmed.

This action was brought to recover damages for the alleged negligent killing of plaintiff's horse and mule by a train owned and operated by the defendant on its railroad.

Upon the introduction of all the evidence, the court, at the request of the plaintiff gave to the jury the following written charges: (1) "If the jury believe from all the evidence that the speed of the train, at the time was such as to make it impossible for the engineer to stop the train within the distance the object on the track could have been seen by a good headlight, then such rate of speed was negligent, and the defendant would be liable." (2) "The defendant cannot justify upon schedule or common rate of speed; but it was the duty of the railroad company to run their trains at such speed as would enable the engineer to stop his train within the space in which an object upon the track could have been observed by the use of his headlight." The defendant separately excepted to the giving of each of these charges, and also duly excepted to the court's refusal to give the following charge requested by it: "If the jury believe all the evidence they must find for the defendant."

There were verdict and judgment for the plaintiff, assessing his damages at $103.65. The defendant appeals, and assigns as error the giving of the charges requested by the plaintiff and the refusal to give the general affirmative charge requested by the defendant.

A. A Wiley, for appellant.

Doster & Sons, C. D. Carmichael, and Halloway & Halloway, for appellee.

HARALSON J.

Action against a railroad company for negligence in killing stock.

1. The principle is too well established to be longer questioned in this court, that it is negligence in a railroad company to run its trains in the nighttime at such a rate of speed that it is impossible, by the use of ordinary means and appliances, to stop the train within the distance in which the stock upon the track can be seen by the aid of the headlight on the engine and prevent injuring them, and if injury results from such negligence, the railroad company is liable to the owner thereof. Railroad Co. v. Kelton, 112 Ala. 533, 21 So. 819, and our cases there cited.

2. The engineer testified that he was running at the time of the accident, 45 or 50 miles an hour, which was his usual speed that it was about 10 o'clock p. m. when it occurred; the night was very dark and foggy; that he was keeping a sharp lookout; that the road is straight for about 300 yards west of the trestle where the animals were killed, and there was a wall of fog at that point which...