Atlantic Coast Line R. Co. v. Vise

• Decision Date: 11 August 1953
• Docket Number: 7 Div. 212
• Citation: 38 Ala.App. 7,78 So.2d 656
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY v. E. E. VISE.
• Court: Alabama Court of Appeals

Page 656

78 So.2d 656

38 Ala.App. 7

ATLANTIC COAST LINE RAILROAD COMPANY v. E. E. VISE.

7 Div. 212.

Court of Appeals of Alabama.

Aug. 11, 1953.

Rehearing Denied Nov. 10, 1953.

Stringer & Montgomery, Talladega, for appellant.

Dixon, Wooten & Boyett, Talladega, for appellee.

The complaint alleges that on July 12, 1950, 'at or about three (3) miles Southeast of Talladega, in Talladega County, Alabama, the defendant's agents or servants, while acting within the line and scope of their employment, negligently ran one of its trains into, over or against a dog, the property of the plaintiff, and as a proximate consequence thereof the dog died; hence this suit.'

PRICE, Judge.

E. E. Vise sued to recover damages for the killing of his fox hound by one of defendant's trains. Judgment was rendered for plaintiff in the lower court and his damages assessed at $100. Defendant appeals.

The complaint stated a cause of action against defendant and was sufficiently specific as to the place of the injury. The demurrer was properly overruled. Louisville & N. R. Co. v. Watson, 208 Ala. 319, 94 So. 551; Southern R. Co. v. Harris, 207 Ala. 534, 93 So. 470.

Defendant pleaded the general issue, in short by consent.

The basis of defendant's assignments of error 3, 4 and 5, is the refusal of the court to direct a verdict for defendant.

The question relative to the burden of proof and the duty of the operatives of a railroad train under circumstances as here involved has recently been considered and the authorities collected in Alabama Great Southern R. Co. v. Hill, 34 Ala.App. 466, 43 So.2d 136; Gulf, Mobile & Ohio R. Co. v. Phifer, 34 Ala.App. 588, 42 So.2d 44.

Plaintiff introduced evidence to the effect that he was the owner of a white, black and tan Walker fox hound of the reasonable market value of $125. The dog was last seen alive when she was turned loose on a fox hunt, two and a half miles from defendant's tracks, at night and in the rain. She was later found dead between the rails of defendant's tracks three miles north of the old Waldo Station in Talladega County. The dog was broken and balled up but practically all together except for a part of her tail which was lying nearby. Her hair was off in several places and dried blood and hair was observed on the side of the rails and cross ties ten or fifteen feet upgrade from where she was found. A collar with defendant's name on it was on the dog. She was in a state of mortification. The place where the dog was found was open country and was not at a road crossing.

Plaintiff testified on direct examination he turned the dog loose about July 12, 1950. On cross-examination he testified he last saw her alive on July 5th or 6th, and found her dead on July 10th or 12th. He admitted he signed answers to interrogatories propounded to him by defendant stating: 'The dog was turned loose on the Jack Canada place in Talladega County, Alabama, at or about 7 o'clock P. M. July 12, 1950,' but stated that he didn't read them before signing.

No effort was made by defendant to meet the prima facie case established by the plaintiff. Defendant's evidence consisted of testimony by C. W. Alford, Chief Train Dispatcher for defendant, to the effect that from July 5th through July 12th there were ten regularly scheduled trains per day, five each way, except on Sunday when there were eight, operating past the point where the dog was killed. Each train had a conductor and an engine crew, consisting of an engineer, fireman and brakeman.

Objections were sustained to questions propounded to W. L. Chastain, defendant's Train Master, in an attempt to show the amount of daily wages paid to its train operatives, and that the expense of assembling all the men from every train running past said point from the time the dog was last seen alive until she was found dead, and bringing them to court to testify, in addition to employing others to operate the trains while the regular crews were attending court, would be so excessive as to be prohibitive, and offered to show the cost to defendant would be in excess of $2,000, and that it would be impossible to secure replacements for the regular train crews.

Defendant correctly contends that since there was no injury at a public crossing nor at any of the other places specified under Sections 170 and 171 of Title 48, Code 1940, the requirements of these statutes as to the duty of the engineer had no operation.

The further contention is that the effect of the holding by this court in the Phifer case, supra, was that no burden was placed upon defendant under Section 173 of said Code, unless the evidence tended to show not only that defendant killed the dog, but also that it was killed under such circumstances as that it could be inferred that the engineer saw the dog and knew or should have known she was helpless or indifferent to her peril, and since plaintiff's evidence fails to show that defendant's employees had any knowledge that the dog was in a position of peril, and was helpless or indifferent to her danger, defendant was entitled to a directed verdict. This contention is without merit.

In the Phifer case, defendant presented evidence by the operatives of the train that allegedly killed the dog, which the court concluded was sufficient to rebut the plaintiff's prima facie case.

The evidence in the case at bar presented a jury question as to plaintiff's right to recover for the killing of the dog, and defendant, having failed to meet the burden cast upon it of acquitting itself of negligence, was not entitled to a directed verdict. Southern R. Co. v. Harris, 207 Ala. 534, 93 So. 470; Louisville & Nashville R. Co. v. Carter, 213 Ala. 393, 104 So. 754; Alabama Great Southern R. Co. v. Wedgworth, 208 Ala. 514, 94 So. 549; Louisville & N. R. Co. v. Green, 222 Ala. 557, 133 So. 294.

In brief appellant urges: 'Our assignments of error numbered 9, 10, 11, 12, 14, 15 and 16 deal with the trial court's rulings sustaining appellee's objections to questions propounded to the witness Chastain. These questions seek to develop the expense to which the railroad would be put in producing testimony of a great number of employees who were members of the crews of trains passing the scene where the dog was found between the time the dog was last seen alive and the time when she was found dead. As already stated, there was a lapse of seven days or more, and the expense of producing this testimony would be prohibitive, and, in fact, one of the questions we asked was whether the railroad could continue its operations if all these witnesses were produced in court. * * * We are not unmindful of the fact that the courts have construed the statutes placing the burden of proof on a party as constitutional where the party was permitted to offer evidence to overcome the burden of proof placed upon such party. However, under the facts shown in this case, where the cost of producing such testimony would be prohibitive or would be an enormous amount of money, such as appellant offered to prove, then we insist that the application of the burden of proof statute in such a case would amount to the taking of property of the defendant without due process of law and would be a violation of the Fourteenth Amendment of the Constitution of the United States.'

It is firmly established by the decision of our courts that when plaintiff has shown that his dog was killed by defendant's train, the burden is then placed on defendant to show the killing was not negligently done, authorities supra, and where there is evidence to show the dog was killed by one of defendant's trains, the burden is on defendant to show that none of its trains which may have reasonably done the killing was negligently operated with respect to that result. Alabama Great Southern R....