Birmingham Mineral R. Co. v. Harris

• Decision Date: 07 June 1893
• Citation: 13 So. 377,98 Ala. 326
• Parties: BIRMINGHAM MINERAL R. CO. v. HARRIS.
• Court: Alabama Supreme Court

13 So. 377

98 Ala. 326

BIRMINGHAM MINERAL R. CO. v. HARRIS.

Supreme Court of Alabama

June 7, 1893

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by George C. Harris against the Birmingham Mineral Railroad Company to recover for the negligent killing of plaintiff's mules. Judgment for plaintiff. Defendant appeals. Affirmed.

All the facts of the case, and the rulings of the court upon the evidence, are sufficiently shown in the opinion. Upon the introduction of all the evidence the defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them, as asked: (1) "There can be no recovery by plaintiff for any mules which the jury, from the evidence, are unable to determine were killed, either by the engine of the witness Jesse, or that of the witness Orr, if the jury believe that any were so killed." (2) "If the jury believe the evidence, they cannot award plaintiff any damages for the mules killed by the train of which the witness Jesse was engineer, if they believe any mules were so killed." (3) "If the jury believe the evidence, they cannot award plaintiff any damages for the mules killed by the train of which the witness Orr was engineer, if they believe any mules were so killed." (4) "If the jury believe that the engine which the witness Orr was running killed two of the mules for which recovery is sought, and that the engine which the witness Jesse was running killed the other two of the mules for which recovery is sought, then they must find for the defendant, under the first count." (5) "If you should believe from the evidence that the train on which the witness Jesse was engineer did not kill either of the mules for which this suit was brought, then, for two of the mules for the killing of which this suit was brought, you must find for the defendant." (6) "If two of the mules, for the killing of which this suit was brought, were killed by a train not disclosed or discovered by the evidence in this case, you must find for the defendant as to the killing of said two mules." (7) "If the jury believe that any of the mules, for the value of which recovery is sought by plaintiff in this action, were killed by any other engine than those operated by the witness Orr or the witness Jesse the burden is on the plaintiff to show that such mule or mules were killed by defendant's negligence." (8) "If the jury believe that none of the four mules were seen by defendant's servants in time, by the use of all the means at hand, to have stopped their trains, then defendant's servants were not required to attempt to stop them, and the jury must find for defendant." (9) "The burden of proof is on the plaintiff to show that defendant's engineers were negligent in failing to keep a proper lookout for the plaintiff's mules." (10) "The burden of proof is on the plaintiff to show that the plaintiff's mules were perceived on the track in time, by the use of all the means in the power of defendant's engineers, to have stopped the trains." (11) "If the jury believe that any one of the mules, for the value of which recovery is sought in the complaint, was not killed by either the train of which the witness Orr was engineer, or the train of which the witness Jesse was engineer, they cannot award the plaintiff any damages for such mule or mules." (12) "Unless the jury believe that all of the four mules, for the value of which recovery is sought in this action, were killed by either the train on which the witness Jesse was engineer, or the train on which Orr was engineer, they cannot award plaintiff damages for all of said four mules." (13) "If the jury believe that, at the rate of speed at which defendant's trains were running, they could not have stopped within the distance within which the headlights would reveal stock, and that such headlights were used on many well-regulated railroads at the time, your verdict must be for defendant." (14) "If the jury believe that the defendant's engineers on the trains which killed plaintiff's mules, for the value of which recovery is sought in this action, exercised reasonable diligence in the matter of keeping a lookout ahead for obstructions, and if they believe all the evidence, they must find for defendant." (15) "If you believe the evidence, you must find for the defendant." (16) "If you believe the evidence, you must find for the defendant under the first count of the complaint." (17) "If you believe the evidence, you must find for the defendant under the second count of the complaint." (18) "If you believe the evidence, you must find for the defendant under the third count of the complaint." (19) "If you believe the evidence, you must find for the defendant under the fourth count of the complaint." (20) "The burden of proof is on the plaintiff to show that the defendant was negligent in failing to sound the cattle alarm." The court charged the jury, at the request of the defendant, that there was no evidence that defendant was guilty of any negligence in running its trains at the speed at which the evidence showed its trains were running at the time and place of the injury.

Hewitt Walker & Porter, for appellant.

Cabaniss & Weakley, for appellee.

HARALSON J.

1. We held in Railroad Co. v. Bees, 82 Ala. 340, 2 South Rep. 752, that when a plaintiff proves his stock has been killed or injured by a railroad train, and their value, even if the evidence fails to show, distinctly, that the engineer either saw the animals, or could have seen them, by ordinary diligence, in time to stop the train or prevent the injury the onus devolves on the railroad company to rebut the presumption of negligence, and, no explanatory or exculpatory evidence being offered, the plaintiff is entitled to a verdict. To the same effect are many other adjudications of this court. Railroad Co. v. Blanton, 84 Ala. 157, 4 South. Rep. 621; Railroad Co. v. McAlpine, 75 Ala. 114; Railroad Co. v. Posey, (Ala.) 11 South. Rep. 423. These decisions, except the last, were under sections 1699 and 1700 of the Code of 1876, (sections 1144 and 1147 of the Code of 1886.)

2. The codifiers of the Code of 1886, or the legislative committee to which the work of the codifiers was referred, inserted into section 1700 of the Code of 1876 the words, "at any one of the places specified in the three preceding sections," thereby bringing about, without more, a change in the rule as to the burden of proof for injuries occurring at places not specified in section 1699 of that Code, constituting section 1144 of the Code of 1886. The act adopting the Code of 1886 was approved February 28, 1887 (Acts 1886-87, p. 47,) the second section of which provides: "No act passed at the present session of the general assembly shall be repealed or affected in any manner by the adoption of this Code, but all acts amending sections of the Code of 1876, which sections have been incorporated in this Code, shall be printed in place of, and as, such sections." On the same day, February 28, 1887, an act was approved "To amend section 1700 of the Code," which amended section is an exact transcript of that section, as it is in the Code of 1876, without any change. Acts 1886-87, p. 146. It was evidently intended as an amendment of that section, as it had been modified by the codifiers or legislative committee, and carried into the Code of 1886, so as to restore it to its original form, without amendment as to the burden of proof. That act, as printed in the Code of 1886, as a note on page 300, is now the law, taking the place of section 1147, which it was designed to substitute. This act of the 28th February, 1887, as we have said, is an exact copy of section 1700 of the Code of 1876. That section was enacted on the 31st January, 1861, and appears in the Code of 1867 as section 1401, which section was afterwards, and before it appeared in the Code of 1876, amended by making it applicable to persons, as well as to stock or other property, and with this exception this statute is now as it was when first enacted, in 1861. That original statute was construed by this court in the case of Railroad Co. v. Williams, 53 Ala. 595, in which the court said: "The effect of the statute is that a railroad company is liable for injuries to stock, when they result from the negligence of its servants or agents, whenever or wherever it may occur. If the injury occurs at or near any public road crossing, or any regular depot or stopping place, or within the corporate limits of any town or city, or because of an obstruction which could or ought to have been perceived, no degree of diligence will excuse the company from liability, unless all the requirements of the statute have been observed. In either case, the injury being shown, the burden of proof is on the railroad company to acquit itself of negligence, or to show a compliance with the statute. If any other construction of the statute should be adopted, it would almost license the destruction of cattle or other stock by railroads." That ruling was subsequently followed in the cases of Railroad Co. v. Bayliss, 74 Ala. 159; Clements v. Railroad Co., 77 Ala. 537; Railroad Co. v. McAlpine, 75 Ala. 118; Id., 80 Ala. 73. In this last case the court explained and limited some of the expressions in the Williams and Clements Cases, supra; but the rule as to the burden of proof-viz. that injury raises the presumption of negligence, and casts on the railroad company the burden of disproving it-has not been disturbed. When, therefore, the general assembly passed said act of the 28th February, 1887, it readopted section 1700 of the Code of 1876, as previously construed by this court, which was an adoption of the judicial construction previously placed upon it; and, being the...