Anderson v. Birmingham Mineral R. Co.

• Decision Date: 07 February 1896
• Citation: 19 So. 519,109 Ala. 128
• Parties: ANDERSON ET AL. v. BIRMINGHAM MINERAL R. CO.
• Court: Alabama Supreme Court

19 So. 519

109 Ala. 128

ANDERSON ET AL. v. BIRMINGHAM MINERAL R. CO.

Supreme Court of Alabama

February 7, 1896

Appeal from circuit court, Bibb county; John Moore, Judge.

Action by Anderson & Shackelford against the Birmingham Mineral Railroad Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Bethea & Wright, for appellants.

Thos G. Jones, for appellee.

COLEMAN J.

Appellants sued in case to recover damages for the killing of two oxen. After the evidence had closed, the court instructed the jury that, if they believed the evidence, their verdict should be for the defendant. The giving of this charge is assigned as error. The rule is that when there is a conflict in the evidence on material facts, or when the facts are of such a character, if believed, as to admit of different conclusions the affirmative charge should not be given. On the other hand, if the evidence is such that, if believed by the jury only one inference is left open, it is not error for the court to instruct the jury affirmatively in accordance with such inferences. We will test the instruction by this rule. Neither of plaintiffs' witnesses testified that they saw the killing. Their evidence shows that the oxen were killed on a fill; that the track was straight for 280 steps before reaching the spot where the collision with the oxen occurred and that the right of way was open for this distance; that the train was running at its usual speed. This is plaintiffs' case. There is no testimony to show the width of the right of way. The statute provides that the right of way, in condemnation proceedings, shall not exceed 100 feet. It may be less. We cannot presume its width. Code 1886, § 1580. The evidence is that the oxen were killed on a "fill." We understand this to be an embankment. How high this fill or embankment is,-whether 1 foot or 20 feet,-we are not informed in the abstract. What kind of a train,--whether freight or passenger,-is not stated. We cannot presume the usual speed of a train, merely from the statement contained in the abstract. The engineer testified "that he had been an engineer for thirteen years; that his engine was in good condition; that he was looking ahead that, when he first saw the steers, they came running out of the fill, in front of the engine; that he could not see them sooner; that he was so close that he could not possibly avoid killing them; that he blew for brakes, but was too...