Central of Georgia Ry. Co. v. Williams

• Decision Date: 16 January 1919
• Docket Number: 4 Div. 804
• Citation: 202 Ala. 496,80 So. 880
• Parties: CENTRAL OF GEORGIA RY. CO. v. WILLIAMS.
• Court: Alabama Supreme Court

80 So. 880

202 Ala. 496

CENTRAL OF GEORGIA RY. CO. v. WILLIAMS.

4 Div. 804

Supreme Court of Alabama

January 16, 1919

Appeal from Circuit Court, Pike County; A.B. Foster, Judge.

Action by Mrs. M.M. Williams against the Central of Georgia Railway Company for damages for the death of certain cows. Judgment for plaintiff, and defendant appealed. Transferred from Court of Appeals under section 6, Acts 1911, p. 450. Reversed and remanded.

See also, 75 So. 401.

The complaint alleged the killing of a yearling and two cows by reason of the negligence of the defendant in the operation of its train of cars. Plaintiff's witnesses testified that they found the yearling dead on January 13th, lying about 54 feet from the railroad track, with hips crushed in and some of its bones broken. Witnesses for the defendant testified that they found the same yearling dead on December 31st previous, lying 75 feet from the track, with its hips then intact and with no marks of violence or indications of licks upon it. They further stated that there were no tracks or signs leading from the track to the carcass, and no signs of dragging or rubbing, nor of hair or blood along the track in that vicinity.

The following charges were requested by and refused to the defendant:

(6) If you believe from the evidence that at the time when the yearling was first seen dead it showed no marks of violence sufficient to have caused its death, your verdict in so far as the yearling is concerned, should be for the defendant.

(7) If you believe from the evidence that at the time when the yearling was first seen dead it was 70 or more feet from the railroad track, and that at that time none of its bones were broken, your verdict should be for the defendant in so far as the yearling is concerned.

With respect to the cows witnesses for plaintiff testified that they were found dead about 8 feet from the track down an embankment, one on each side. The evidence for the defendant tends to show that the engineer on the engine that killed the cows kept a constant lookout straight ahead from the time he left Linwood, about half a mile away, until the cows were struck; that the cow on the south side ran suddenly across the track, and the engineer first saw her about 30 feet ahead of the engine; that he was sitting on the right of his cab and could not see the first 30 feet of the left rail just in front of the engine; that he applied the brakes at once and did everything possible to avoid striking the cow; and that he did not see the other cow at all. In the oral charge to the jury the court said, "It is the duty of the engineer at all times to keep a constant lookout ahead." To this part of the charge the defendant excepted.

Plaintiff's evidence placed the value of the yearling at $15 and of the cows at $50 each, while evidence for the defendant placed the...