Atlanta & St. A.B. Ry. Co. v. Hodges

• Decision Date: 14 November 1922
• Docket Number: 4 Div. 752.
• Citation: 94 So. 252,19 Ala.App. 42
• Court: Alabama Court of Appeals
• Parties: ATLANTA & ST. A. B. RY. CO. v. HODGES.

94 So. 252

19 Ala.App. 42

ATLANTA & ST. A. B. RY. CO. v. HODGES.

4 Div. 752.

Court of Appeals of Alabama

November 14, 1922

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action for damages by H. C. Hodges against the Atlanta & St. Andrews Bay Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Espy &amp Hill, of Dothan, for appellant.

Farmer, Merrill & Farmer, of Dothan, for appellee.

BRICKEN P.J.

This action originated in the justice court of beat 3 in Houston county, and judgment by default was rendered for plaintiff for the amount sued for. From this judgment an appeal was taken to the circuit court, and a jury trial was there demanded by plaintiff.

In the circuit court the cause was tried and judgment rendered for plaintiff on August 16, 1921, from which judgment this appeal is taken.

On the merits of the case: The first insistence of error is that the trial court erred in sustaining the plaintiff's objection to that portion of the evidence of the witness Livingston wherein said witness stated, "and it also might be dangerous." The witness had just testified that he applied the brakes of the engine in emergency; that he had opened his sand valve and air valve, and that as soon as he had sanded the track he put the brakes in emergency; that he did everything he could; that he applied his brakes in emergency, opened the sand valve and air valve, and sanded the rails in order not to slip while making the emergency stop to prevent running over him (the bull), and then he said, "and it also might be dangerous." Whether the witness meant to say that it was dangerous for him to do what he did to stop the train or that it was dangerous to run over the bull is not satisfactorily shown by the bill of exceptions. In either event, the mere possibility of danger as testified to by him would be immaterial, and therefore no prejudicial error was committed by the trial court in sustaining the objection of the plaintiff to said statement of the witness. Moreover, it does not appear that any motion was made to exclude the statement from the consideration of the jury.

Appellant's second assignment of error raises the propriety of the trial court's giving the following special charge at the request of the plaintiff:

"The Court charges the jury that, when the engineer of the defendant's engine that killed the bull of plaintiff upon perceiving the bull on the track of defendant, the said engineer must have used all the means in his power known to skillful engineers, such as applying the brakes and reversing engine in order to stop the train, and if the killing of the bull was the result of the failure of defendant's engineer to put on the brakes and reverse the engine, the plaintiff is entitled to recover for the reasonable value of the bull."

We see no error in giving this charge. Section 5473 of the Code of Alabama provides that an engineer, having the control of the running of a train, must, on perceiving any obstruction on the track, use all the means within his power known to skillful engineers, such as applying brakes and reversing engine, in order to stop the train. This charge simply asserts the legal duty resting upon the engineer by reason of the statute. It asserts that, when the engineer perceived the obstruction on the track, it was his duty to use all means within his power known to skillful engineers, such as applying brakes and reversing engine, to prevent the injury. This is the provision of the statute. The charge in question therefore correctly states the law, and there was no error in its being given by the trial court. Ala. Great Sou. Railroad Co. v. Moody, 90 Ala. 46, 8 So. 57.

The third assignment of error is based upon the refusal of the trial court to give the general affirmative charge for the defendant upon the whole complaint, and the fourth assignment of error is based upon the refusal of the trial court to give the general affirmative charge upon the first count of the complaint. These assignments may be properly treated together.

The law is that, whenever a conflict exists in the evidence as to material facts in a case, or when the evidence is of such character as to reasonably support different conclusions therefrom, the affirmative charge cannot be given. On the other hand, if only one reasonable conclusion can be drawn from the evidence in a case, it is proper that the affirmative charge be given on such evidence if the same is believed by the jury. Anderson et al. v. Birmingham Min. R. R. Co., 109 Ala. 128, 19 So. 519.

The plaintiff in this case testified that he found his hog on the railroad track between the rails with its nose and two of its feet cut off; that its body was on the inside of the track and blood was on the rail; that the suit was brought within less than six months after the hog was killed; and that the hog was worth about $5. We think that the jury in this case, taking into consideration the fact that the hog was found where he was found with its nose and feet cut off and with blood upon the rail of defendant's railroad track, was authorized under the testimony, if believed, and no witness contradicts it, to find that said hog was killed by defendant's train, or locomotive, or cars, and this was sufficient to make out a prima facie case against the defendant railroad company. The affirmative charge first requested, being directed against the complaint in its entirety, could not, therefore, be properly given, as the killing of the hog by defendant's train, locomotive, or cars could have been reasonably inferred from the posture and condition of the carcass and from the other physical surroundings and circumstances. Cent. of Georgia Ry. Co. v. Williams, 202 Ala. 496, 80 So. 880.

Further testing the rule above stated with reference to the refusal of the trial court to give the affirmative charge with respect to the killing of the bull by defendant's train it may be observed that the evidence, as set out in the bill of exceptions, shows without dispute that plaintiff's bull was killed by defendant's train at a point on its railroad track located on a slight fill or embankment at the foot of a slight grade; that at the point where the bull was killed the railroad track was practically straight for a mile and a half, and that the train which killed the bull was running from south to north, and that the point at which the bull was killed was visible from a southerly direction for about the distance of one-half mile; that the train...