Atlantic Coast Line R. Co. v. Adams

• Decision Date: 03 March 1954
• Docket Number: 6 Div. 589
• Citation: 74 So.2d 524,37 Ala.App. 538
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY v. Annie ADAMS.
• Court: Alabama Court of Appeals

Page 524

74 So.2d 524

37 Ala.App. 538

ATLANTIC COAST LINE RAILROAD COMPANY v. Annie ADAMS.

6 Div. 589.

Court of Appeals of Alabama.

March 3, 1954.

Rehearing Denied March 23, 1954.

Huey, Welch & Stone, Bessemer, for appellant.

Ling & Bains, Bessemer, for appellee.

These charges were refused to defendant:

'2. If you are reasonably satisfied from the evidence in this case that the defendant's train could not have been stopped within the distance from which defendant's engineer first saw plaintiff's cow on or near the tracks, then I charge you that defendant's engineer was under no duty to attempt to stop the train.'

'3. If you are reasonably satisfied from the evidence in this case that plaintiff's cow was tied to defendant's tracks or that its rope was in some way caught on some object so that plaintiff's cow could not get off of defendant's track or out of the path of defendant's train and that by the use of all available means at his command the defendant's engineer could not have stopped the train within the distance from which he first saw the cow, then I charge you that defendant's engineer was under no duty to attempt to stop the train as the law does not require a man to do a useless thing.'

PRICE, Judge.

Plaintiff sued to recover damages for the killing of her cow by one of defendant's trains. Judgment was rendered in her favor in the lower court and her damages assessed at $100. Defendant appeals.

On the trial the parties stipulated that on October 12, 1950, a milch cow, the property of plaintiff, was run into an killed by a train operated by defendant on its tracks near Cairo in Jefferson County, Alabama. It was further stipulated that the reasonable market value of the cow was $100.

Thus a prima facie case was established for plaintiff and the burden shifted to defendant to acquit itself of negligence. Title 48, Section 173, Code 1940; Louisville & Nashville R. Co. v. Green, 222 Ala. 557, 133 So. 294.

The engineer testified the cow was struck about half a mile from a public crossing under an overhead trestle which crossed appellant's tracks and in a right hand curve in the direction he was traveling. He was operating a Diesel engine pulling sixty to seventy cars at a speed of 40 miles per hour. The accident occurred about 6:30 A.M. It was daylight, and although the headlight was burning there was no need for lights. He stated, 'This cow was trying to pull away from the track as I was blowing the whistle; she couldn't get no further than as far as she was. I thought maybe the engine would pass her by, the way she had the rope stretched, or chain, or whatever it was.' He said the train could not have been stopped under a thousand to fifteen hundred feet, and since it would have done no good, he did not apply the brakes. He eased the throttle up two notches but this would not decrease the train's speed and he maintained the same rate of speed from the time he saw the cow until she was struck.

Defendant's section foreman testified the ground outside the rail was disturbed, indicating the cow had walked and stamped around there for some time. At plaintiff's home he saw a rope lying in an old truck which plaintiff said had been taken off the cow. No rope was found where she was struck.

In rebuttal plaintiff testified after the cow was hit the plow line which was run through a piece of hose and tied around her horns was still in one piece. The knot where the rope had been tied to a stake was still there and the rope had not been cut. The cow had been missing the night before and she had not tied her down on the railroad tracks.

Leonard Smith and Johnnie Chambliss testified they saw no cow tracks along the road bed and saw no pieces of rope. The rope on the cow was in one piece.

In Louisville & Nashville Railroad Co. v. Posey, 96 Ala. 262, 11 So. 423, 424, the court held:

'The duty to take precaution against inflicting injuries arises not only when the engineer of a moving train sees an animal on the track, or in dangerous proximity thereto, but also when by the exercise of due diligence he might have seen it. A failure in either of these respects is negligence.'

Or, as stated by Justice Foster in Owen v. Southern Ry. Co., 222 Ala. 499, 133 So. 33, 34:

'Usually the duty owing by the...