Central of Georgia Ry. Co. v. Dumas

• Decision Date: 21 November 1901
• Parties: CENTRAL OF GEORGIA RY. CO. v. DUMAS.
• Court: Alabama Supreme Court

30 So. 867

131 Ala. 172

CENTRAL OF GEORGIA RY. CO. v. DUMAS.

Supreme Court of Alabama

November 21, 1901

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Action by Hull Dumas against the Central of Georgia Railway Company to recover damages for killing of stock. Judgment for plaintiff. Defendant appeals. Affirmed.

The engineer who was in charge of the defendant's engine at the time the accident happened testified in behalf of the defendant that its train was a passenger train, and consisted of an engine and three passenger cars, and that it was equipped with an air brake, which was in good working order that before reaching the place where the mule was struck he was on the lookout; that he saw the mule about a quarter of a mile away, and at that time it was grazing along the bank, on the right of way, and about 10 or 15 feet from the rails that the mule then walked off from the track a short distance, and at that time he was running about 30 miles an hour; that when the train was about 75 or 100 yards from the mule it jumped on the track, and ran a short distance, and that at the moment the mule started towards the track he blew the cattle alarm, and applied the air brakes, and that such application reduced the speed of the train, but did not check it in time to prevent striking the animal; that, when the mule started towards the track suddenly, it was impossible with all the appliances known to skillful engineers, to have stopped the train. This witness testified that he had been a locomotive engineer for 12 or 13 years. The court, at the request of the plaintiff, gave to the jury the following written charge: "A failure on the part of the engineer to maintain a steady lookout for obstructions on the track is itself culpable negligence." To the giving of this charge the defendant separately excepted, and also separately excepted to the court's refusal to give each of the following written charges requested by it: (1) "If the jury believe the evidence, they must find for the defendant." (3) "If the jury believe from the evidence that the mule was seen by the engineer of the train a quarter of a mile from him, and that said mule was then grazing on the side of the embankment, and then started down it from the train, and when the mule was in about 100 yards of the train, and then jumped on the track in front of the engine, they must find for the defendant." (4) "If the jury believe from the evidence that the mule jumped in front of the engine when it was within 100 yards of the engine, and that prior thereto the mule had been away from said track, and the engineer was on the lookout, they must find for the defendant." There were verdict and judgment for the plaintiff,...